Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. EJ2518A, Patricia Spear, Judge.
AARON, J.
Sheila L. and Charles L. appeal from an order terminating their parental rights under Welfare and Institutions Code section 366.26. We affirm the order.
Unless otherwise indicated, further references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
S.L. is the daughter of Sheila L. and Charles L. (together, parents). In January 2005, three-year old S.L. was adjudicated a dependent of the juvenile court on the grounds that her parents had exposed her to their violent confrontations and that Charles was mentally ill and had attempted to commit suicide after barricading himself and S.L. in a bedroom. (§ 300, subd. (b).)
At the dispositional hearing, the court ordered a plan of family reunification services, including psychological and psychiatric evaluations.
Both Sheila and Charles had a history of methamphetamine and cocaine use. In addition, Sheila had a history of involvement with child protective services. Her parental rights to one of her children had been terminated and another child was in the custody of his father. Sheila had been diagnosed as suffering from polysubstance abuse, in remission; bipolar II disorder; and dysthymia.
Charles was a heavy user of cocaine until approximately 1998. He then started using methamphetamine "essentially every day, depending on finances." A psychologist opined that Charles had either schizoaffective disorder or toxic psychosis secondary to amphetamine dependence and withdrawal. After Charles regained his sobriety, a psychiatrist concluded that Charles's mental health problems were related to substance abuse. Charles was diagnosed with polysubstance dependence, in remission; and narcissistic personality traits.
A social worker described S.L. as a sweet, playful child with no developmental concerns.
The parents participated in court-ordered services and regularly visited S.L. The social worker reported that the parents had made significant progress. At the August 2006 18-month review hearing, the court returned S.L. to her parents under a plan of family maintenance services.
At the initial family maintenance review hearing, the social worker opined that Charles's commitment to his family was remarkable. S.L.'s behaviors were normal. Sheila remained on psychiatric medications. In January 2007, Sheila and Charles had a healthy baby boy.
In July 2007, the San Diego County Health and Human Services Agency (Agency) recommended that the court terminate dependency jurisdiction. However, in early August, after Charles learned that Sheila was having an extramarital affair, Charles hit Sheila and threatened to commit suicide. After this episode, Charles was hospitalized for three days. The treating physician stated that Charles had suffered acute depressive decompensation. Charles was diagnosed with depression, not otherwise specified; probable adjustment disorder with depressed mood and disturbance of conduct; methamphetamine and cocaine dependence, sustained full remission; and rule out pathological gambling. The court retained jurisdiction and offered additional family maintenance services to the family.
In April 2008, the Agency detained S.L. and filed a section 387 petition alleging that the parents were not providing adequate care and supervision to S.L.
The Agency also initiated dependency proceedings on behalf of S.L.'s younger brother.
Sheila admitted that she had used Vicodin on a daily basis throughout the dependency case and that she had concealed her use of Vicodin by manipulating her psychiatric medications. She had tested positive for marijuana and opiates after reentering substance abuse treatment. Sheila said that she was struggling in treatment because Charles was gambling and she had to care for the children.
In June 2008, the court sustained the section 387 petition and removed S.L. from parental custody. The court terminated reunification services and set a section 366.26 hearing.
The section 366.26 hearing was held on December 5, 2008. The Agency's report and addendum dated October 21, an addendum dated December 5, and the social worker's resume, were entered in evidence. The court heard testimony from the social worker and Sheila.
The Agency reported that six-year old S.L. was extremely traumatized. She had developmental delays, severe behavioral problems, and exhibited sexualized behaviors. She blamed herself for her foster care placement, saying that she "was bad." S.L. was diagnosed with adjustment disorder with disturbance of emotions and conduct; rule out PTSD; parent-child relationship problems; and possible sexual abuse. During the dependency proceedings, S.L. had five foster care placements, none of which lasted longer than eight months.
In October 2008, with the court's authorization, the Agency placed S.L. with her paternal aunt, Brenda D., who lived out of state.
The social worker testified that she observed interactions between S.L. and her parents at seven visits. S.L. was excited to see her parents and told them that she loved them. Sheila played with S.L., but she did not redirect her daughter as needed. When S.L. acted out, Charles was able to introduce a new activity. S.L. was affectionate with her parents, the social worker and her last two caregivers. S.L. appeared to be doing well in the care of Brenda, who was a licensed foster care parent. Brenda was willing to adopt S.L.
Sheila testified that, at visits, she played games with S.L. and asked her to read. They talked and shared hugs and kisses. Sheila stated that she loved S.L. very much and that S.L. loved her.
The court stated that this was a difficult case. Both parents were making progress in the sibling's case. They had maintained regular contact and visitation and deserved credit for many of S.L.'s positive attributes. However, S.L. had many needs that were created by her exposure to the parents' domestic violence, sexualized behaviors, mental illness, psychiatric breakdowns and substance abuse. The court found that S.L. was likely to be adopted within a reasonable time (adoptability finding). The court determined that the benefit to S.L. of continuing her relationships with her parents did not outweigh the benefit she would derive from a stable, permanent adoptive home, and thus the beneficial parent-child relationship exception did not apply. The court proceeded to terminate parental rights.
DISCUSSION
A
The Parties' Contentions
Charles contends that the court erred when it found that the beneficial parent-child relationship exception (exception) did not apply. Charles argues that expert opinion established that S.L. had formed intense and enduring attachments to both parents, that she wanted to live with her mother and father, and that she was suffering substantial emotional loss as a result of her separation from them. He asserts that the uncontroverted evidence shows that he had remained clean and sober, that he had no current mental health problems, and that he was able to provide S.L. with a safe, permanent home. Charles contends that his circumstances are analogous to those of the parents in In re S.B. (2008) 164 Cal.App.4th 289, 299 (S.B.), In re Amber M. (2002) 103 Cal.App.4th 681 (Amber M.), and In re Jerome D. (2000) 84 Cal.App.4th 1200 (Jerome D.), in which this court concluded that the beneficial parent-child relationship exception applied, and reversed the orders terminating parental rights.
Sheila contends that there is not substantial evidence to support the court's finding that she did not have a beneficial parent-child relationship with S.L. In support of her contention, Sheila, too, relies on the psychologist's expert opinion that S.L. had a strong attachment to her parents, despite their significant deficiencies.
Sheila also argues that the court erred when it found that S.L. was specifically adoptable. She argues that, in view of S.L.'s behavioral problems and the short time S.L. had lived with her aunt, there is not substantial evidence to support the finding. Sheila further argues that the court's statement that S.L. was "probably generally adoptable as well" did not meet the clear and convincing standard of proof for an adoptability finding.
Each parent adopts by reference the other parent's brief. (Cal. Rules of Court, rule 8.200(a)(5).)
The Agency contends that there is substantial evidence to support the court's findings that S.L. was likely to be adopted within a reasonable time and that the beneficial parent-child relationship exception did not apply to preclude termination of parental rights. The Agency maintains that the evidence shows that S.L. was both specifically and generally adoptable, that Sheila's and Charles's relationships with S.L. were not parental in nature, and that S.L. did not have a substantial, positive emotional attachment to them.
Minor's counsel joins with the Agency's arguments. Minor's counsel further states that S.L. had five foster care placements since 2005 and, as the social worker and an expert evaluator concluded, any small benefit from continued contact with her parents does not outweigh S.L.'s far more important need for the stability of adoption with a more nurturing caregiver.
B
Legal Framework for Termination of Parental Rights and Application of the Beneficial Parent-Child Relationship Exception
At a permanency plan hearing under section 366.26, the court may order one of three alternatives: adoption, guardianship, or long-term foster care. (In re Taya C. (1991) 2 Cal.App.4th 1, 7.) If the dependent child is adoptable, there is a strong preference for adoption over alternative permanency plans. (San Diego County Dept. of Social Services v. Superior Court (1996) 13 Cal.4th 882, 888; In re Zachary G. (1999) 77 Cal.App.4th 799, 808-809.)
A finding of adoptability requires "clear and convincing evidence of the likelihood that adoption will be realized within a reasonable time." (In re Zeth S.(2003) 31 Cal.4th 396, 406; § 366.26, subs. (c)(1).) 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, we do not examine the suitability of the prospective adoptive home. (In re Scott M. (1993) 13 Cal.App.4th 839, 844.) When the child is deemed adoptable based solely on a particular family's willingness to adopt the child, the trial court must determine whether there is a legal impediment to adoption. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1061.)
Once the court determines that the child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1). (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345; but see § 366.26, subd. (c)(1)(A).) Section 366.26, subdivision (c)(1)(B)(i), provides that there is 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."
"Benefit from continuing the relationship" means that "the [parent-child] relationship 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 (Autumn H.).) Where the parent has continued to regularly visit and contact the child, and the child has maintained or developed a significant, positive, emotional attachment to the parent, "[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.)
On review, we determine whether the record contains substantial evidence from which the court 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, 1562; see also Zeth S., supra, 31 Cal.4th at p. 406.) The reviewing court must affirm the court's rejection of the exceptions to termination of parental rights under section 366.26, subdivision (c), if the finding is supported by substantial evidence. (Autumn H., supra, 27 Cal.App.4th at p. 576; S.B., supra, 164 Cal.App.4th at p. 298.)
C
There is Substantial Evidence to Support the Court's Finding that S.L. Was Likely To Be Adopted Within a Reasonable Time
The parents acknowledge that the evidence shows that S.L. may be specifically adoptable by her paternal aunt, but argue that the placement has not yet "withstood the test of time" and therefore, the order terminating parental rights was "precipitous and unwise." This argument is untenable, both legally and factually.
There is no requirement that the child live with a prospective adoptive parent for any particular length of time before the court may conclude that the child is likely to be adopted. To the contrary, the Legislature has mandated that "[t]he fact that the child is not yet placed in a preadoptive home nor with a relative or foster family who is prepared to adopt the child, shall not constitute a basis for the court to conclude that it is not likely the child will be adopted." (§ 366.26, subd. (c)(1).) Even if a child is considered difficult to place for adoption because of the child's age or the presence of a diagnosed medical, physical, or mental handicap, the court may not delay permanency if there is an identified or available prospective foster parent. (§ 366.36, subd. (c)(3).)
Here, the Agency identified a prospective adoptive parent and reasonably focused on that placement in its assessment report. The evidence shows that Brenda wants to adopt S.L., that she is capable of providing a safe, stable and nurturing home to S.L., that she understands S.L.'s needs and her own responsibilities as an adoptive parent, and that she will proceed with the adoption if parental rights are terminated. Brenda does not have a criminal history or any prior involvement with child protective services. She successfully raised three children of her own, two of whom are adults. Her youngest child, a teenager, lives at home. Brenda has frequent contact with her six-year old grandson. She understands the responsibilities of adoption and she is eager to complete the process.
Brenda knows about the ongoing dependency proceedings. In 2006, she obtained her foster care license in preparation to care for S.L. After S.L. was removed from parental custody for the second time, Brenda renewed her foster care license. Brenda understands that S.L.'s placement with her may be challenging. After the Agency placed S.L. with Brenda, Brenda worked with S.L. to address S.L.'s physical, emotional and educational needs. S.L. told the social worker that she is happy and that she wants to live with her aunt. There is no evidence to show that there is a legal impediment to S.L.'s adoption. (In re Carl R., supra, 128 Cal.App.4th at p.1061.)
We conclude that there is substantial evidence to support the court's adoptability finding. The evidence regarding Brenda's willingness to adopt S.L. is sufficient to sustain the adoptability finding on appeal; therefore, we need not consider the parties' arguments concerning the finding of general adoptability.
D
There is Substantial Evidence to Support the Court's Finding that the Beneficial Parent-Child Relationship Exception Does Not Apply
Sheila and Charles contend that there is not substantial evidence to support the court's finding that the beneficial parent-child relationship exception does not apply. They assert that the psychological evaluation of S.L., conducted by Christopher Carstens, Ph.D., conclusively establishes that S.L. has formed an intense and enduring attachment to her parents and that she was suffering substantial emotional loss and grief as a result of her separation from them. The parents also point to their many affectionate and loving interactions with S.L. during visitation.
We recognize that S.L. loved her parents and looked to them for stability and support (particularly in view of her multiple foster care placements). However, the record shows that S.L. was "repeatedly and intensely let down by her parents." Psychologist Carstens noted that the parents exposed S.L. to domestic violence, chronic parental psychiatric disorder and substance abuse in what was apparently a highly sexualized environment. Carstens stated that, in his practice, he could not recall ever having interviewed a child who was any more convinced than S.L. that the separation and loss of parental contact was her own fault.
Carstens stated that "the root of S.L.'s problem is not an inability to develop a parental attachment, but rather that she developed a strong attachment to parents who have continued to use drugs and live chaotic lives, in which the care of their children appears to have taken a back seat [to] satisfying their own immediate desires." He opined that the stability of an adoptive placement would be beneficial and that adoption was in S.L.'s long-term best interests. Similarly, the social worker opined that the benefits that S.L. would gain from adoption included long-term stability, a safe, nurturing home, a sense of identity and belonging, and the opportunity to address the adverse issues of her early childhood.
We note that the record shows that Sheila continued to use drugs throughout the dependency proceedings.
While Charles deserves credit for his efforts to remain sober, improve his parenting skills and keep his family intact, the record supports the finding that, overall, the parent-child relationships did not benefit S.L., and in many instances, they had a negative effect on her well-being. (In re Angel B. (2002) 97 Cal.App.4th 454, 467 [the positive or negative effect of interaction between parent and child is a factor in determining whether the relationship is beneficial to the child].)
In September 2008, more than three and one-half years after the incident, S.L. remembered "when daddy held a knife to his throat and cut his neck." S.L. saw her parents hit each other and heard them call each other "bad names." She described seeing her parents drunk. She described making baby formula and giving her brother a bottle when he was crying and hungry, while her mother listened to music and ignored the baby. When the parents' relationship again became volatile, S.L.'s behavior worsened as the home situation deteriorated. She had problems at school and was approximately one year below grade level.
S.L. worried about her parents and wanted to make sure they had enough to eat. Sheila stated, "[T]hat's just how she is, she worries about us." Sheila did not recognize the reversal of the parent-child relationship and its impact on S.L. The social worker opined that S.L. did not look to her parents for emotional care. S.L. stated that her mom and dad did not take care of her. Although she was told that she would not see her parents if she were adopted, S.L. was still eager to live with her aunt.
The circumstances of this case are not comparable to those in S.B., Amber M., or Jerome D. In S.B., the evidence showed that the child consistently derived comfort, love, guidance, affection and stimulation from the parent-child relationship. (S.B., supra, 164 Cal.App.4th at pp. 300-301.) In Amber M., the evidence showed that the parent was devoted to her children and consistently acted in a loving parental role, and the children had a strong, beneficial attachment to her. (Amber M., supra, 103 Cal.App.4th at p. 690.) In Jerome D., the psychologist opined that the nine-year old child had a strong and well-developed bond with his mother, that continued contact with her would benefit the child developmentally, and that lack of contact would be detrimental to the child. (Jerome D., supra, 84 Cal.App.4th at p. 1207.) Here, in contrast, the evidence permits the reasonable inference that the parent-child relationships were not beneficial to S.L. and that S.L. would greatly benefit from the stability of adoption with a nurturing, consistent caregiver.
We conclude that the court did not err in determining that S.L.'s interests in a continued relationship with her parents did not outweigh her interests in the security of an adoptive placement with a safe, stable, and loving family that was capable of meeting her needs for attentive, consistent and nurturing care. (Autumn H., supra, 27 Cal.App.4th at p. 575.) There is substantial evidence to support the court's finding that termination of parental rights would not be detrimental to S.L. (Ibid.; § 366.26, subd. (c)(1)(B).)
DISPOSITION
The orders are affirmed.
WE CONCUR: HALLER, Acting P. J., McDONALD, J.