COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
December 16, 2010
IN RE ALYSSA A. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
RUBY P., DEFENDANT AND APPELLANT.
APPEAL from a judgment of the Superior Court of San Diego County, Ronald F. Frazier, Judge. (Super. Ct. No. SJ11518B,C,D)
The opinion of the court was delivered by: McINTYRE, J.
In re Alyssa A.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Ruby P. appeals the judgment terminating her parental rights to her six-year-old daughter, Alyssa A., and her sons, four-year-old Elijah A. and two-year-old U.P. (together, the children). Ruby contends the juvenile court abused its discretion by denying her modification petition (Welf. & Inst. Code,§ 388; all statutory references are to this code) which sought the children's placement with paternal grandmother Esther F. Ruby also contends the court erred by finding the children adoptable and declining to apply the beneficial relationship exception to termination of parental rights (§ 366.26, subd. (c)(1)(B)(i)). We affirm.
In 2005 the San Diego County Health and Human Services Agency (the Agency) filed dependency petitions for one-year-old Alyssa, newborn Elijah and Ruby's five-year-old daughter, L.A. The petitions alleged Ramiro A., the father of Alyssa and Elijah, sexually abused L.A. The juvenile court made true findings on the petitions, declared Alyssa, Elijah and L.A. dependents and ordered reunification services for Ruby. In 2007 the court awarded custody of L.A. to her father, Gilbert R; awarded custody of Alyssa and Elijah to Ruby; denied Ramiro visitation; and terminated dependency jurisdiction. In October Ruby gave birth to U.P., the biological child of Ramiro.
In March 2008 Elijah returned to daycare after a four-day absence. He had a fading bruise covering half his forehead. Previously, Elijah had been absent from daycare for two days and had returned with a fading bruise on his face. On that occasion Ruby claimed that Alyssa had hit Elijah, but Alyssa reported that their father had hit Elijah with a door. The social worker went to Ruby's home on March 3 and discovered that Ramiro was living there. The children were detained in Polinsky Children's Center and then in foster homes. The Agency filed dependency petitions alleging Ruby allowed Ramiro to live in the home despite the no contact orders. In August the court made true findings on the petitions and ordered the children placed in foster care.
In March 2009 Ruby began unsupervised visits. In May, after returning from a visit, Alyssa reported that "daddy babe" had touched her with his penis and made her hold it. Alyssa told the social worker that "daddy babe" was her daddy and her mom called him "babe." In a forensic interview, Alyssa referred to the perpetrator as "[m]y dad." Future visits were supervised.
In January 2010 the court terminated reunification services and set a section 366.26 hearing. On May 8 the children met a prospective adoptive family. In June the children began the transition into the family's home. Alyssa and Elijah's transition was completed on June 18. On June 4 U.P. began spending every weekend in the home, and his transition was completed on July 2, after Alyssa and Elijah had adjusted to the new family. Before the move, Alyssa had lived in 15 placements (seven in the first dependency case and eight in this case), Elijah had lived in 14 placements (seven in each case) and U.P. had lived in six placements.
On July 8, 2010, the first day of the contested section 366.26 hearing, Ruby filed her section 388 petition. The court denied the petition on July 14 and terminated parental rights on July 16.
THE SECTION 388 PETITION
Section 388 allows the juvenile court to modify an order if a parent proves, by a preponderance of the evidence, that changed circumstances exist and the proposed modification would promote the child's best interests. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) We review the denial of a section 388 petition for abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)
As changed circumstances supporting the children's placement with Esther, Ruby's petition alleged Esther had obtained a three-bedroom home; had taken parenting classes and planned to take more; would attend a support group for adoptive parents; and would "be using a therapist." The petition alleged that placement with Esther was in the children's best interests because they had a relationship with her and loved her, and Esther had visited regularly and had a strong bond with the children. The juvenile court properly found that Ruby had not shown changed circumstances or that placement with Esther was in the children's best interests.
In August 2009, more than seven months after Esther learned the children were in foster care, she requested placement. At the time of the request Esther did not have a home, had not seen the children for at least four months and had seen U.P only a couple of times. Nevertheless, the Agency encouraged Esther to begin the relative home approval process. By April 2010 Esther had been fingerprinted but had not completed any other requirement. She did not obtain a home until June 4, less than six weeks before the section 388 hearing and after the children had begun transitioning into the prospective adoptive home. Esther's new home passed the Agency's inspection, but by the time of the hearing, the Agency had not approved Esther for placement due to her criminal record. Esther had several convictions related to welfare fraud, including two felonies.
Esther had visited the children weekly since March 2010. Esther was appropriate during visits and the children responded to her but she never said she wanted to adopt them. Esther was unaware of Elijah's and Alyssa's special needs and, until the day before the hearing, did not know how many times the children had been moved.
The children were difficult to place due to behavioral problems and they needed safety, security and stability after their multiple placements. They had found this in the prospective adoptive home, had made positive changes and were developing a bond with the prospective adoptive parents. The prospective adoptive parents were former foster parents with an approved home study. They were committed to adopting the children, understood the children's special needs and had been trained to meet those needs.
Esther, on the other hand, could not provide a stable and secure home. She had never lived in one place for more than two and one-half years. Her rent was high in relation to her income and her criminal history disqualified her from some forms of financial assistance. Esther had allowed her own children to leave home when they were 13 to 16 years old. At the beginning of the first dependency case Esther had removed Alyssa from Ruby's home without permission and kept Alyssa for two days.
Contrary to Ruby's suggestion, the relative placement preference (§ 361.3) did not apply. The preference applies to temporary placements, not adoptive placements. (In re Lauren R. (2007) 148 Cal.App.4th 841, 853, 855.) After the dispositional hearing, the preference arises only if a new placement is necessary. (Id. at pp. 853-854.) This case was past the reunification phase, the focus was on the children's need for permanency and stability and there was a rebuttable presumption that continued foster care was in their best interests. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) Elijah wished to remain in the prospective adoptive home, as did Alyssa, despite her ambivalence. U.P. was too young to express his wishes.
The Agency had the burden of proving adoptability. (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1557, 1559-1561.) "Although a finding of adoptability must be supported by clear and convincing evidence, it is nevertheless a low threshold: The court must merely determine that it is 'likely' that the child will be adopted within a reasonable time. [Citations.]" (In re K.B. (2009) 173 Cal.App.4th 1275, 1292.) A finding of general adoptability "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 child who is not generally adoptable may be specifically adoptable, that is, adoptable "because a prospective adoptive family has been identified as willing to adopt the child." (Id. at p. 1650.) A child's psychological, behavioral and developmental problems may make it more difficult to find adoptive homes, but do not necessarily prevent an adoptability finding. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154; In re Helen W. (2007) 150 Cal.App.4th 71, 75, 79; In re Jennilee T. (1992) 3 Cal.App.4th 212, 224-225.) Construing the record most favorably to the judgment (In re Josue G. (2003) 106 Cal.App.4th 725, 732), substantial evidence supports the court's finding that the children were adoptable (In re Lukas B., supra, at p. 1154).
The social worker believed the children were generally adoptable because they were healthy, young, sweet, loving, playful and attractive and were able to form bonds. Alyssa and Elijah sometimes behaved aggressively, which had caused their removal from some of their placements. Alyssa suffered from anxiety and hyperactivity. Elijah was sometimes disobedient and had a speech delay. Alyssa and Elijah received psychotherapy. U.P. had a speech delay and, as a two-year-old, was "at the temper tantrum stage." The children's problems, however, could be resolved and did not affect general adoptability. Their behavior had improved, especially in the last one and one-half months, although there had been some regression.
The social worker believed the children were specifically adoptable because they were placed with an approved family who was aware of the children's problems, able to handle the problems and committed to adopting the children. There were five more San Diego County families interested in adopting a similar sibling group, 31 such families elsewhere, and a greater number of families available to adopt the children individually.
If a dependent child is adoptable, the juvenile court must terminate parental rights at the section 366.26 hearing unless the parent proves the existence of a statutory exception. (§ 366.26, subd. (c)(1); In re Helen W., supra, 150 Cal.App.4th at p. 80.) One such exception exists if "[t]he parent[ has] maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) 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.) The existence of this relationship is determined by considering "[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.) Examining the evidence in the light most favorable to the judgment, we conclude that although Ruby visited regularly, substantial evidence support the court's finding that the benefits of adoption outweighed the children's bond with Ruby. (Id. at pp. 576-577; In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373.)
At the time of the hearing Alyssa was six and one-half years old and had been out of Ruby's care for a total of more than three years in the two dependency cases. Alyssa wanted to remain in the prospective adoptive home, although she said she would miss Ruby. Elijah was four and one-half years old and had been out of Ruby's care for more than two and one-half years. When asked whether he wanted to continue seeing Ruby, Elijah did not respond. Early in this case Ruby acknowledged she lacked a mother-son bond with Elijah. U.P. was two and one-half years old and had been out of Ruby's care for more than two years. He was too young to express his wishes.
Before June 24, 2010, Ruby visited U.P separately from Alyssa and Elijah because Ruby had difficulty controlling the children. Ruby generally fulfilled a motherly role during her supervised visits. The children loved Ruby and enjoyed the visits but looked to their prospective adoptive parents for guidance and nurturance. The children had been moved many times. The social worker believed their need for stability and permanency outweighed their need to continue seeing Ruby and it would not be detrimental to the children to sever their relationship with Ruby.
The judgment is affirmed.
BENKE, Acting P. J. HALLER, J.
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