IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT Sacramento
May 12, 2011
IN RE BRE.W. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
M.W., DEFENDANT AND APPELLANT.
Super. Ct. Nos. JD229661, JD229662
The opinion of the court was delivered by: Nicholson , Acting P.J.
In re Bre. W. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
M.W. (father) appeals from the juvenile court's orders terminating his parental rights and directing adoption as to minors Bre.W. and Bra.W. (Welf. & Inst. Code, § 366.26.)*fn1 Father contends that several exceptions to adoption apply, and that there is no substantial evidence the minors are likely to be adopted within a reasonable time. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On May 4, 2009, Sacramento County Department of Health and Human Services (the Department) filed section 300 petitions as to Bre. (an 18-month-old girl) and Bra. (a five-year-old boy), alleging: Father and mother had failed to provide Bre. her prescribed medications; she was losing weight in the parents' care and was below the first percentile for growth. The home lacked electricity and a refrigerator. Mother had previously failed to reunify with three half siblings of the minors and had had her parental rights terminated as to all three.
The jurisdiction/disposition report, filed May 21, 2009, noted that father had had parental rights terminated as to three other half siblings of the minors. Experts who had worked with the parents opined that, because of their developmental delays and unawareness of children's basic needs, they could not care adequately for the minors. Father denied needing parenting classes because he "'ha[d] done parenting six times already with all [his] kids,'" overlooking the fact that it failed to benefit him as to any of those children.
Both minors, when detained, suffered from treatable problems (in Bre.'s case, poor weight gain and an ear infection; in Bra.'s case, poor hygiene, head lice, and unclear speech). On the other hand, the parents' visitation with the minors went well, and the parents' home now appeared to be in appropriate condition.
In an addendum report filed June 15, 2009, the Department recommended bypassing reunification services to both parents because of the termination of their parental rights as to the minors' half siblings and their failure to make reasonable efforts to cure the problems leading to the half siblings' removal. (§ 361.5, subds. (b)(10), (b)(11).) The paternal grandmother, who had adopted three of the minors' half siblings, had indicated that she would like to adopt the minors or to become their legal guardian; if her home passed the pending kinship assessment, the Department would support placing the minors with her.
At the combined jurisdiction/disposition hearing on September 8, 2009, the juvenile court sustained the section 300 petitions as amended, adjudged the minors to be dependents of the court, ordered them placed with the paternal grandmother, bypassed reunification services to both parents, and set a section 366.26 hearing for January 5, 2010.
The Department's post-permanency review report requested a 180-day continuance for the paternal grandmother to complete her home study. The report stated that the minors were generally adoptable: though Bre. had speech delays and Bra. had learning disabilities and academic delays, they were otherwise developmentally on target for their ages and in good health. Both were close to the paternal grandmother, with whom they were living. She was committed to adopting them and could meet their current and future needs. However, the Department was unsure whether she could pass a home study because four other adults and three children lived with her in a four bedroom, two bath home.
In January 2010, the juvenile court continued the section 366.26 hearing to June 29, 2010.
An addendum report filed June 29, 2010, stated that the paternal grandmother would not pass a home study because she still had too many people living with her, and the family's limited income would not allow them to secure a larger home or separate residences. Therefore, the Department would attempt to find another adoptive home with a family that would maintain contact with the grandmother and other relatives. The Department still assessed the minors as generally adoptable.
At the request of counsel for the minors, the juvenile court continued the matter to July 29, 2010.
In a second addendum report filed July 29, 2010, the Department noted that some of the people in the paternal grandmother's home would be moving out very soon. However, the adoption home study social worker had concerns about the paternal grandmother's judgment, because she had allowed or might allow inappropriate adults to contact the minors. The report stated that if the grandmother could not pass a home study, freeing the minors for adoption and conducting adoption home finding would be in their best interests.
Based on the Department's current concerns, the juvenile court continued the section 366.26 hearing again. It finally took place on September 27, 2010.
At the hearing, the paternal grandmother testified that she believed the home study was now completed. She felt the minors should remain with her even if she did not pass the home study, because they were closely bonded to each other and had settled in at her home. She also felt they should not be separated; although they did not have problems parting for the day when Bra. went off to school, they would be lost without each other. She had not spoken to them about adoption because they were too young.
Father testified that he visited the minors as often as he was allowed to -- formerly twice a week, but now once a month for one to two hours. He did not recall missing any visits. He believed the paternal grandmother had prevented him from seeing the minors during scheduled visits after he had reported that one of them had head lice.
Father disagreed with the recommendation to terminate his parental rights because "[he] raised the kids the best [he] could and [he] did nothing wrong to lose them." He thought the minors wanted to continue to see him and mother, but that might not happen if they were adopted.
Mother testified that she had visited the minors regularly, although no visits had occurred that year between April 25 and the first Saturday in September. When the parents visited, the minors were happy and affectionate; they would cry when the visits ended because they wanted to go home with the parents. She disagreed with the recommendation to terminate her parental rights because she felt she had done everything in her power to get the minors back. If she did not get them back, she would prefer a legal guardianship with the paternal grandmother rather than adoption.
Social worker Kerry Bamber, who worked in the adoptions unit of Child Protective Services, testified that she had been assigned to the case for a year during which she had met with the minors monthly for the first five months, then quarterly once or twice, and had observed them together once briefly at the paternal grandmother's home. In Bamber's opinion, it would not be in the minors' best interests to be separated because they had been together all along and had a sibling relationship.
Bamber believed the paperwork for the paternal grandmother's home study was now done and the outcome would probably be known in a week or two. If the grandmother did not pass, Bamber would look for an adoptive family that was open to maintaining the minors' contact with the grandmother and other relatives.
Under questioning from county counsel, Bamber testified that Bre. was receiving early intervention services to deal with her "delays." Father's counsel objected that this line of questioning was beyond the scope of direct. After the juvenile court observed that "it goes to whether or not she's generally adoptable," father's counsel replied: "I'm not challenging the general adoptability. . . . I don't plan on arguing that. I plan on [arguing] the sibling [relationship] and the parental bond."
Bamber testified that visitation had initially occurred once a week at the paternal grandmother's home, but then Bre. developed head lice and the grandmother and the parents disputed how she had acquired them. Visitation was then disrupted for several months due to the head lice problem and the grandmother's desire that visitation take place somewhere other than at her home. It was not the grandmother alone who disrupted it; it was "both parties."
County counsel argued that because the minors were generally adoptable, the possibility that they might not be adopted by the paternal grandmother or might be adopted by separate families was not an impediment to terminating parental rights. Furthermore, the parents had not met their burden to show that any exception to adoption applied.
The minors' counsel asked the juvenile court to identify the paternal grandmother's home as a prospective adoptive home. County counsel stated that the Department did not oppose this request.
Father's counsel, joined by mother's counsel, asked the juvenile court to consider a permanent plan of legal guardianship with the paternal grandmother rather than termination of parental rights and adoption. The parents' testimony about visitation showed the beneficial parental relationship exception to adoption applied. The sibling relationship exception also applied because the minors were an intact, bonded sibling group who should not be separated and their relationship could potentially be disrupted by adoption. As to adoptability, father's counsel reiterated: "I understand that nobody is asking today to separate them, and yes, that they're both generally adoptable. We're not making an argument that they're not."
The juvenile court found by clear and convincing evidence that the minors were generally adoptable. The court also found that the parents had not met their burden as to either the beneficial parental relationship exception or the sibling relationship exception to adoption. They had shown no detriment to the minors from terminating the parental relationship. As to the sibling relationship, it was not clearly established that the minors were so closely bonded that they would be "lost" without each other, but in any event there was no evidence that they were going to be separated and, even if they might be separated, there was no evidence that the detriment from separation would outweigh their interest in permanence.
For all of those reasons, the juvenile court terminated the parents' rights and ordered adoption as the permanent plan for the minors. The court also specifically ordered them placed with the paternal grandmother.
Father contends the minors have a bond with the paternal grandmother which can be preserved only through a permanent plan of legal guardianship, not through adoption. Father relies on section 366.26, subdivision (c)(1)(A), which provides that the juvenile court shall not terminate parental rights if "[t]he child is living with a relative who is unable or unwilling to adopt the child because of 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 through legal guardianship, and the removal of the child from the custody of his or her relative would be detrimental to the emotional well-being of the child. . . ."
The Department responds that this contention is forfeited because father did not raise it below: although he requested legal guardianship with the paternal grandmother as an alternative to adoption, he did not cite section 366.26, subdivision (c)(1)(A), or make any argument based on it. (See In re Daisy D. (2006) 144 Cal.App.4th 287, 292 [exceptions to adoption]; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252 [same].) We agree.
But even if not forfeited, the argument lacks merit. Section 366.26, subdivision (c)(1)(A) is inapplicable because the paternal grandmother was willing to adopt and there was no showing she could not do so. The fact that her home had not yet been approved for adoption was not evidence that it would not be approved, especially since the only objective problem identified -- the excessive number of people in her home -- had apparently been resolved.
In re Fernando M. (2006) 138 Cal.App.4th 529, on which father relies, is inapposite. There, the minor's mother and maternal grandmother requested a permanent plan of legal guardianship with the grandmother, whose husband would not consent to adoption. (Id. at p. 533.) No similar evidence was offered here.
II Father contends the sibling relationship exception to adoption applies. We disagree.
At the selection and implementation hearing, the juvenile court must choose one of four alternative permanent plans for a minor; the permanent plan preferred by the state is adoption. If the minor is adoptable, the court must terminate parental rights absent a showing of detriment to the minor. (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.)
The parent has the burden of establishing by a preponderance of the evidence that a statutory exception to adoption applies. (In re Valerie A. (2007) 152 Cal.App.4th 987, 998; In re Zachary G. (1999) 77 Cal.App.4th 799, 809; Cal. Rules of Court, rule 5.725(d)(4).) We uphold a juvenile court's ruling declining to find such an exception if substantial evidence supports the ruling. (In re Zachary G., supra, 77 Cal.App.4th at p. 809.)
The sibling relationship exception to adoption applies 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)(B)(v).) A parent appealing the termination of parental rights has standing to raise this exception. (In re Erik P. (2002) 104 Cal.App.4th 395, 402.)
Father did not meet his burden to prove that this exception applied because he produced no evidence of impending interference with the sibling relationship. The court ordered the minors to remain placed with the paternal grandmother, who wants to adopt them both. Even if she cannot do so, the fact that they have been found generally adoptable means it is likely that some family will adopt them together within a reasonable time.*fn2 (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) Even if they are not adopted together, there is no evidence that any prospective adoptive parents would not maintain the sibling relationship.
Because father presented no evidence of any possible interference with the sibling relationship, we need not consider whether any detriment caused by such interference would outweigh the benefit of permanence to the minors.
III Father contends the beneficial parental relationship exception to adoption applies. We disagree.
To prove that this exception applies, the parent must show he or she "ha[s] maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) It is not enough simply to show "some benefit to the child from a continued relationship with the parent, or some detriment from termination of parental rights." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1349.) There must be a significant, positive emotional attachment between parent and child. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.) But even where such an attachment exists, it does not bar adoption if the children look to a prospective adoptive parent to meet their needs. (See In re Dakota H. (2005) 132 Cal.App.4th 212, 231; In re Zachary G., supra, 77 Cal.App.4th at p. 811.)
"Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child's needs, it is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement." (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.)
First, father failed to prove even regular visitation. Mother admitted that in the recent past there had been no visits for over four months, and substantial evidence showed that the parents were at least partly responsible for this hiatus.
But even if the parents' visitation were deemed both regular and evidence of a significant attachment, it would not suffice to deny adoption because the minors are bonded to the paternal grandmother, who is a prospective adoptive parent and look to her to meet their needs. (See In re Dakota H., supra, 132 Cal.App.4th at p. 231; In re Zachary G., supra, 77 Cal.App.4th at p. 811.)*fn3
IV Father contends there is no substantial evidence the minors are adoptable. The Department replies that father is estopped to raise this contention because he expressly conceded in the juvenile court the minors are generally adoptable. We agree.
The Department's reports consistently stated that the minors were generally adoptable because they were in good health and generally on track developmentally for their ages, despite certain delays. When county counsel began to elicit evidence during the section 366.26 hearing as to the services Bra. was receiving for her delays, father's counsel told the juvenile court: "I'm not challenging the general adoptability. . . . I don't plan on arguing that. I plan on [arguing] the sibling [relationship] and the parental bond." County counsel therefore did not pursue his line of questioning. Father's counsel then argued only the cited exceptions to adoption and again conceded the minors were generally adoptable.
On appeal, father asserts: "Although father's trial counsel did not challenge the adoptability finding at trial, appellant is not precluded from challenging it on appeal as the Department, not the father, had the burden of proof on that issue." Father is mistaken.
The claim of insufficient evidence of a child's adoptability (like insufficient evidence claims generally) is not forfeited by the mere failure to argue the issue in the juvenile court. (In re Erik P., supra, 104 Cal.App.4th at p. 399.) But father's trial counsel did not just fail to argue the issue: he affirmatively conceded it. He not only declined to challenge the evidence in the Department's reports, which the Department had offered to meet its burden, but also cut off questioning that would have brought out further evidence on this issue and later argued it that way.
When a party acquiesces to the social worker's recommended findings and orders, he may not complain about them for the first time on appeal. (In re Richard K. (1994) 25 Cal.App.4th 580, 589-590; accord, In re Kevin S. (1996) 41 Cal.App.4th 882, 886; Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 812, 813.) More generally, a party may not change his theory of the case on appeal, especially where the newly raised theory depends on factual questions not raised below. (In re Dakota H., supra, 132 Cal.App.4th at pp. 221-222.) Therefore, father may not now dispute the strength of the evidence supporting the recommended finding, in which he twice acquiesced below, that the minors are generally adoptable.
Father also contends the minors are not specifically adoptable. Because he conceded below that they are generally adoptable, we need not consider this argument.
The orders terminating parental rights are affirmed.
We concur: ROBIE,J. MURRAY ,J.