In re K.J. CA4/2

Filed 5/31/13 In re K.J. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re K.J. et al., Persons Coming Under the
Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES, E056898
Plaintiff and Respondent, (Super.Ct.No. RIJ120773)
v. OPINION
F.C. et al.,
Defendants and Appellants.
APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni,
Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Reversed with directions.
Mitchell Keiter, under appointment by the Court of Appeal, for Defendant and
Appellant F.C.
Roni Keller, under appointment by the Court of Appeal, for Defendant and
Appellant T.J.
1
Pamela J. Walls, County Counsel, and Anna M. Deckert, Deputy County Counsel,
for Plaintiff and Respondent.
F.C. (Mother) and T.J. (Father) appeal after the termination of their parental rights
to K.J. and A.J. at a Welfare and Institutions Code section 366.26 hearing.1
The claims on appeal are as follows:
1. Mother and Father both claim that the juvenile court erred by finding that
the Indian Child and Welfare Act (ICWA) did not apply, because the notice was
deficient.
2. Father, joined by Mother, contends that the trial court erred by finding that
the beneficial parent-child exception of section 366.26, subdivision (c)(1)(B)(i) did not
apply.
3. Mother claims that the juvenile court erred by finding the children
adoptable.2
I
PROCEDURAL AND FACTUAL BACKGROUND
On December 8, 2010, Riverside County Department of Public Social Services
(the Department) received a report of general neglect for K. (who was born in October
2008) and A. (who was born in September 2009). Prior to this date, Mother, K., and A.
1 All further statutory references are to the Welfare and Institutions Code
unless otherwise indicated.
2 Father did not join in this argument.
2
had been living in a shelter for battered women and children in Los Angeles County. On
December 6, 2010, Father, who admitted he was the biological father of the children,
showed up at the shelter, and several people witnessed him threaten Mother. Father took
a swing at Mother. He became angry when staff and security became involved.
Mother had been at the shelter since October 29, 2010. She had left the shelter on
several occasions without permission and had tested positive for marijuana on December
3, 2010. Mother had a history of mental illness and was not taking her medication. She
had planned to stay at the shelter until she could receive subsidized housing but had left
in the middle of the night on December 8, 2010. She moved back in with Father at his
home in Riverside County.
A social worker went to Father‟s home on December 9. The home was clean, and
there were no safety hazards. However, a medical marijuana container was found in the
bedroom. It was accessible to K. and A. Mother was there with the children. She
reported that both she and Father had been in group homes when they were younger.
Mother was pregnant and due January 2011. She admitted that she had smoked
marijuana within the prior few weeks. She claimed that when Father came to the shelter
he only yelled at her and did not hit her.
Father denied he hit Mother at the shelter and denied any domestic violence. K.
was congested; Mother did not have a breathing machine for K.
3
Mother and Father had another child, who was older than A. and K., who had
resided with the paternal grandmother since infancy. Father reported he had three other
children who lived with their respective mothers.
Father was on disability due to a mental “disability.” He was also on probation.
He had tested positive for marijuana on December 3, 2010. The paternal grandmother
reported that Father had developmental delays. He had been prescribed medication for
depression but refused to take it. He had a significant criminal history beginning in his
“early teens.” The paternal grandmother reported that Father had committed every crime
as a juvenile except for murder — “he‟s done everything . . . but kill somebody.” She
reported that Mother first became pregnant when she was 15 years old and had been
pregnant for the prior four years. She could not take medication for her mental illness
due to the pregnancies. The paternal grandmother also reported that the relationship
between Father and Mother was very volatile.
In 2009, the paternal grandmother had to pull Father off of Mother, who was on
top of her, choking her. There had been a prior referral for the family because it had been
reported that Mother kicked out the apartment windows while holding K. Mother and
Father had fought because Father had impregnated another woman.
In the past, Father had kicked Mother out of his home if she did not have money.
Mother would come back if Father wanted her back. Father yelled obscenities at Mother
in front of the children. Father and Mother only fed the children junk food, and K. was
always sick.
4
K. and A. were detained on December 9, 2010. K. was taken for evaluation and
found to have bronchitis. A also had bronchitis, in addition to an ear and throat infection.
On December 13, 2010, the Department filed a section 300 petition against Mother
and Father. It alleged under section 300, subdivision (b) that the parents engaged in
domestic violence, they both abused marijuana, they exposed the children to drugs and
were under the influence while caring for the children, they both suffered from
unresolved mental health issues, Mother led a transient lifestyle, they both failed to
benefit from prior services, and they failed to get adequate medical care for A. and K.
At a hearing held on December 14, 2010, the juvenile court found a prima facie
case, and ordered K. and A. detained. It also ordered that Mother and Father fill out an
ICWA-020 form. K. and A. were placed in foster care. Weekly supervised visitation
was ordered.
In a jurisdictional/dispositional report filed on January 7, 2011, the Department
recommended that A. and K. remain in foster care and that Father and Mother be granted
reunification services. The Department recommended that both parents undergo
psychological evaluations. The Department confirmed that there was a previous referral
on March 12, 2009, for the incident involving Mother kicking out the apartment window.
Mother admitted that she kicked out the window.
A social worker attended a visit on December 30, 2010. A. and K. did not want to
end visitation with Mother and Father, but after hesitating for a moment, went with the
5
foster mother. Visitation in general was going well. Mother and Father played with and
held the children during visitation.
Mother was interviewed. She was born in December 1991. She claimed she
called Father to the shelter because she needed diapers. Father had gotten lost on the way
and was angry with Mother. They were arguing when a worker at the shelter heard them.
Mother was sent to a home when she was 12 years old because she was
misbehaving. She claimed she had been raped when she was 10 years old, but her
parents did not believe her. She returned to her parents‟ home when she was 15, met
Father, and was soon pregnant. Mother denied any physical domestic violence between
her and Father. She used marijuana only when the children were not with her. She did
not take medication for her mental issues because of her pregnancies.
Father was born in May 1985 and claimed to have been born with spinal
meningitis, which caused developmental delays. Father was 10 years old when his own
father died. He dropped out of school in the 11th grade. On occasion he took medication
for anxiety and depression. He admitted that he has seven children.
Both Father and Mother wanted the children placed with the paternal grandmother.
In a previous referral, the paternal grandmother was to take legal guardianship of the
children, but the paperwork was never completed. Father “was very upset” that the
children were in foster care and wanted them placed with the paternal grandmother. K.
and A. were adjusting well to the foster home. They were in good health but both had
breathing problems.
6
On January 11, 2010, the Department filed an amended petition adding C.J.
(which was amended again on February 9, 2011, to correct his name), who was born in
December 2010. It was alleged as to C. that the parents tried to hide his birth and that
Mother used marijuana during the pregnancy.3 The remainder of the petition remained
the same. According to the detention report for C., Father and Mother placed C. with a
cousin because they were afraid he would be detained. Father claimed he had not placed
C. with the paternal grandmother because she was too old and sickly to take care of him;
however, the paternal grandmother was only 46 years old and was not sick. Father yelled
at a social worker about the cases involving the children. C. was placed in foster care,
but not in the same home as A. and K.
An additional jurisdictional/dispositional report was filed on February 9, 2011.
Mother had started taking medication and was less anxious and depressed. Mother
denied she and Father tried to hide C.
K. and A. were developing normally. They missed Mother and Father but had
adjusted to their foster parents. Visitation was taking place twice per week, and the visits
were going well.
The jurisdictional/dispositional hearing was conducted on February 15, 2011. On
that day, the Department filed a third amended petition deleting some of the evidence
3 C. is not a subject of the instant appeal. We will only refer to proceedings
pertaining to C. as they relate to the termination of parental rights for K. and A.
7
supporting the allegations. Father and Mother objected to the amended petition but
presented no affirmative evidence. The juvenile court found the allegations in the third
amended petition true. Mother and Father were granted six months of reunification
services. Visitation would be liberalized if Mother and Father were complying with their
case plan.
In the six-month status review report filed on August 2, 2011, it was
recommended that reunification services continue for Father and Mother. K. and A.
remained in foster care together; C. was in another foster home. Father and Mother
remained unemployed. Father continued to be “angry and accusatory.” K. and A. were
developing normally. K. occasionally suffered from bronchitis. K. and A. had adjusted
well to their foster home.
Mother had not attended a substance abuse program. She had moved to Los
Angeles County, which she claimed made it difficult to comply with services. Mother
had completed some services by the time of the report. Father was asked to leave an
anger management program because of his behavior. He had completed some services.
Since February 15, 2011, Father and Mother had not been consistent with
visitation. Mother had attended more visits than Father, and the visits were appropriate.
Mother interacted well with all three children. During some visits, Father had shown
anger and aggression toward K. and A. Father spent most of his time at visits on his
phone.
8
At a hearing on August 16, 2011, the juvenile court extended reunification
services for six more months.
The Department filed a 12-month status review report on February 2, 2012. The
Department recommended that reunification services be terminated for Father and
Mother and that a section 366.26 hearing be set with a permanent plan of adoption.
The paternal grandmother, on January 24, 2012, wanted to be considered to adopt
all three children. However, there had been a referral for her to the Department for using
improper punishment on the older child in her care. K. and A. were both developing
normally and were doing well in the foster home. K. had a psychological evaluation. He
presented as highly anxious. It was recommended he stay in his foster home, where he
had a structured and caring environment.
No home could be found to take all three children. The Department noted K. and
A. were in their third placement. The first placement was not appropriate since the
family only spoke Spanish, and the second placement ended because of “unforeseen
circumstances of the foster parents.” K. and A. had been in the current foster home since
September 2011. They had adjusted to the home and were very comfortable in their
placement.
Mother and Father had not completed parenting classes or domestic violence
classes. Father had been diagnosed with major depression but had not sought treatment.
He had unresolved anger issues. Mother had no stable housing or income. Both Father
and Mother had failed to address their problems with domestic violence.
9
As for visitation, Mother and Father had been inconsistent. They failed to make
themselves available for C.‟s birthday or Christmas. When they did visit, Father and
Mother were appropriate, and the children responded well to them.
On February 24, 2012, and March 13, 2012, addendum reports were filed.
Mother and Father had not completed their services. Father complained that he did not
complete services because the service providers were rude or unsympathetic. Father and
Mother complained they had no transportation, but bus passes had been provided to them.
On March 6, 2012, Father and Mother had gone to a family care center demanding
counseling and services. Father became aggressive and angry when he was told he would
have to go through an enrollment procedure. Mother claimed to be seeking housing in
Riverside County.
On March 16, 2012, the review hearing was held. Mother and Father failed to
appear and did not advise the court or counsel the reasons for their absence.
Reunification services were terminated. A section 366.26 hearing was set.
On June 27, 2012, the Department filed a report for the section 366.26 hearing.
The permanent plan was adoption. In the report, the Department asked that the section
366.26 hearing be continued for 120 days in order to assess the prospective adoptive
family. A. and K. had been moved to a permanent home for adoption just three weeks
prior to the report.
A. and K. were adjusting well to the permanent home where they would be
adopted. K. had become very open, focused, and willing to talk and share and was
10
happy. The new placement seemed to be good for K. A. also had adjusted well to the
new home. Their transition had been better than expected.
During a visit on May 16, 2012, Father‟s anger continued to escalate. He directed
his anger at Mother due to reunification services being terminated. Father‟s anger upset
the children, and they started to cry. Mother did nothing to calm Father. The visit had to
be terminated. The foster parents were concerned that Mother was in danger. Mother
and Father left together. Mother and Father missed the next two visits. A. and K. were
“fearful and anxious” when the foster parents mentioned visitation with their parents.
The Department was unable to contact Mother for two weeks. The adoptive
parents for K. and A. and the prospective adoptive parents for C. were willing to maintain
the sibling relationship. On July 5 and 11, 2012, addendum reports were filed. The
Department recommended termination of parental rights and adoption by the current
caregivers. The addendum included the adoption assessment report.
A. and K. continued to do well in their prospective adoptive home. They were in
good health and developing normally. Both were bonding with the prospective adoptive
parents. The family had a good home; supportive families; and a strong, committed
relationship.
On June 11, 2012, during a telephone conversation between a social worker and
Father, Father became angry and accused the Department of taking his children. Father
stated, “[Y]ou supposed to be black . . . , how could you just take my kids like that and
11
not giving them back. You aint black!” Father used profanity, and the social worker
terminated the telephone call.
During a supervised visit on July 2, 2012, Father brought two other children and
two adults. He was angry throughout the visit. He claimed he could do what he wanted
during the visit and would no longer listen to the Department. The social worker almost
had to call the police.
On July 23, 2012, the section 366.26 hearing was conducted, as will be set forth in
more detail, post. Mother‟s and Father‟s parental rights were terminated, and K. and A.
were freed for adoption. Mother and Father filed notices of appeal.
II
ICWA NOTICE
Both Father and Mother contend that the ICWA notice was insufficient.
A. Additional Factual Background
On December 14, 2010, Mother filed an ICWA-020 form. She claimed to have
some Indian ancestry. Father also filed the form. He claimed “Cherokee” on “PGF‟s
side.” Notice was given not only to the Bureau of Indian Affairs (BIA), but also to the
Cherokee Nation, Eastern Band of Cherokee Indians, and United Keetoowah Band of
Cherokee. The notice stated that Father‟s biological father (the paternal grandfather) was
Roy Jones but provided no further information, such as his birth date or middle name. He
was deceased and died in Montgomery, Alabama.
12
The United Keetoowah Band of Cherokee responded that they would not intervene
because the family did not appear to be members. The Eastern Band also responded that
it would not intervene because the family were not members.
At a hearing on January 13, 2011, the Department asked that the juvenile court
find that ICWA notice had been given as to Father. The juvenile court stated, “The Court
will find good notice pursuant to Indian Child Welfare Act and will find that as to the
United Keeto[o]wah Indians, that the Indian Child Welfare Act does not apply to that
band/tribe.”
In a letter dated March 31, 2011, from the Cherokee Nation, addressed to the
Department, it stated that the notice was not considered proper because it lacked the
middle name of paternal grandfather, Roy Jones, and his date of birth. The letter stated,
“It is impossible to validate or invalidate this claim without more complete family
information.” The letter also stated that two previous letters had been sent, and no
response was received. The tribe refused to conduct any further search.
In the Department‟s six-month review report filed on August 2, 2011, it stated that
K. and A. were not members of the Eastern Band of Cherokee Indians. It further stated,
“The Department has not heard from the other two tribes and therefore ask the Court to
make a finding that the Indian Child Welfare Act does not apply.” Thereafter, the
juvenile court found that ICWA did not apply.
13
B. Lack of Notice
“Congress enacted ICWA to further the federal policy „“that, where possible, an
Indian child should remain in the Indian community. . . .”‟ [Citation.]” (In re W.B., Jr.
(2012) 55 Cal.4th 30, 48.) “ICWA requires that when a court knows or has reason to
know that an Indian child is involved in a dependency matter, it must ensure that notice is
given to the relevant tribe or tribes. [Citation.]” (In re J.O. (2009) 178 Cal.App.4th 139,
154.)
ICWA notice must include “the name, birthdate, and birthplace of the Indian child;
his or her tribal affiliation; . . . and information about the Indian child‟s biological
mother, biological father, maternal and paternal grandparents and great-grandparents or
Indian custodians, including maiden, married and former names or aliases; birthdates;
places of birth and death; current and former addresses; tribal enrollment numbers, and/or
other identifying information. [Citations.]” (In re Louis S. (2004) 117 Cal.App.4th 622,
630.) “The burden is on the [Department] to obtain all possible information about the
minor‟s potential Indian background and provide that information to the relevant tribe or,
if the tribe is unknown, to the BIA. [Citation.]” (Ibid.) “Notice is meaningless if no
information or insufficient information is presented to the tribe to make that
determination. [Citation.]” (Ibid.)
“„The [trial] court must determine whether proper notice was given under ICWA
and whether ICWA applies to the proceedings. [Citation.] We review the trial court‟s
14
findings for substantial evidence. [Citation.]‟ [Citation.]” (In re Christian P. (2012) 208
Cal.App.4th 437, 451.)
Here, the Cherokee Nation advised the Department that it could not conduct a
valid search because the information regarding the paternal grandfather was insufficient.
The Department did not respond. There is nothing in the record as to whether the
Department investigated the request from the Cherokee Nation. The Department
remained in contact with the paternal grandmother throughout the proceedings, and it is
conceivable that she could provide the information. Instead, the Department represented
to the juvenile court that it had not heard from the Cherokee Nation. The notice to the
Cherokee Nation was deficient.
The Department essentially concedes that the notice was insufficient. It contends,
however, despite the insufficient notice, that any error was harmless since there was no
evidence that the information could be obtained. Further, it contends that Father and
Mother have failed to show that such evidence can be discovered.
We disagree with the Department. “Deficiencies in an ICWA notice are generally
prejudicial but may be deemed harmless under some circumstances.” (In re E.W. (2009)
170 Cal.App.4th 396, 402.) For instance, a deficiency in ICWA inquiry and notice is
harmless error when, even if notice has been given, the child would not have been found
to be an Indian child or, despite defective notice, the tribe eventually took part in the
proceedings. (In re S.B. (2005) 130 Cal.App.4th 1148, 1162.) These circumstances are
not present in this case. The Cherokee Nation informed the Department it could not
15
conduct a valid search without the information and the Department failed to follow up.
There is nothing else in the record to support that if the information had been provided,
the Cherokee Nation would find that the children were not Indian children.
The Department did not comply with ICWA‟s notice requirements because it did
not supply the Cherokee Nation with information that was potentially available, despite a
specific request from the tribe. On this record, we cannot find the Department
substantially complied with ICWA‟s notice requirements, and we will remand the matter.
(See Tina L. v. Superior Court (2008) 163 Cal.App.4th 262, 268.)
III
BENEFICIAL PARENT EXCEPTION OF SECTION 366.26,
SUBDIVISION (c)(1)(B)(i)
Father, joined by Mother, argue that the beneficial parental exception of section
366.26, subdivision (c)(1)(B)(i) applied, and the juvenile court erred by terminating their
parental rights.
A. Additional Factual Background
At the section 366.26 hearing, Father testified in regard to the beneficial parental
exception. He testified that he had maintained visitation. He indicated that K. and A.
would run up to him at the visits and show affection to him. They called him “dad.” He
claimed to be attentive and involved during the visits. K. told Father that he wanted to
come home. Father had a bond with the children. He wanted legal guardianship in place
of adoption.
16
Father argued that the benefit of continuing the relationship outweighed the
benefits of adoption. Mother presented no evidence but argued the beneficial parental
bond exception applied.
The juvenile court found by clear and convincing evidence that the exception did
not apply. It terminated parental rights (ruling Father was the presumed father).
B. Analysis
At the section 366.26 hearing, the sole issue “„is whether there is clear and
convincing evidence that the child is adoptable.‟ [Citations.]” (In re Josue G. (2003) 106
Cal.App.4th 725, 733; see § 366.26, subd. (c).) “Adoption, where possible, is the
permanent plan preferred by the Legislature.” (In re Autumn H. (1994) 27 Cal.App.4th
567, 573.) If the court finds that a child may not be returned to his or her parents and is
likely to be adopted, it must select adoption as the permanent plan, unless it finds that
termination of parental rights would be detrimental to the child under one of the seven
exceptions set forth in section 366.26, subdivision (c)(1)(A) and (c)(1)(B)(i) through (v).
(See In re Jamie R. (2001) 90 Cal.App.4th 766, 773.)
The parental benefit or “beneficial relationship” exception is set forth in section
366.26, subdivision (c)(1)(B)(i). The exception applies where “„[t]he parents . . . have
maintained regular visitation and contact with the minor and the minor would benefit
from continuing the relationship.‟” (In re Derek W. (1999) 73 Cal.App.4th 823, 826.)
“The parent must do more than demonstrate „frequent and loving contact[,]‟
[citation] an emotional bond with the child, or that parent and child find their visits
17
pleasant. [Citation.] Instead, the parent must show that he or she occupies a „parental
role‟ in the child‟s life.” (In re Derek W., supra, 73 Cal.App.4th at p. 827.) “The
„benefit‟ prong of the exception requires the parent to prove his or her relationship with
the child „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.‟
[Citations.]” (In re K.P. (2012) 203 Cal.App.4th 614, 621.) “„The burden falls to the
parent to show that the termination of parental rights would be detrimental to the child
under one of the exceptions. [Citation.]‟ [Citations.]” (In re C.B. (2010) 190
Cal.App.4th 102, 122.)
“We review the trial court‟s findings for substantial evidence. [Citation.]” (In re
Dakota H. (2005) 132 Cal.App.4th 212, 228; see also In re Bailey J. (2010) 189
Cal.App.4th 1308, 1314.) “„On review of the sufficiency of the evidence, we presume in
favor of the order, considering the evidence in the light most favorable to the prevailing
party, giving the prevailing party the benefit of every reasonable inference and resolving
all conflicts in support of the order.‟ [Citation.]” (In re C.F. (2011) 193 Cal.App.4th
549, 553.) Thus, “a challenge to a juvenile court‟s finding that there is no beneficial
relationship amounts to a contention that the „undisputed facts lead to only one
conclusion.‟ [Citation.] Unless the undisputed facts established the existence of a
beneficial parental . . . relationship, a substantial evidence challenge to this component of
the juvenile court‟s determination cannot succeed.” (Bailey J., at p. 1314.)
18
Here, the juvenile court did not state in its ruling whether it found visitation was
regularly maintained, e.g., that the parents had shown the first prong of the exception.
Father argues that visitation was “illusory,” relying upon In re Hunter S. (2006) 142
Cal.App.4th 1497.4 Moreover, Father claims that any difficulties he had during visitation
were due to his mental disabilities and because the visits were supervised by the foster
parents, who incited his anger problems. Since the juvenile court did not state if it was
finding that Father and Mother had maintained regular visitation, and because Father and
Mother cannot show a beneficial relationship, we will assume that they maintained
regular visitation.
Father and Mother cannot prove their relationship with the K. and A. benefitted
the children to such a degree as to outweigh the well-being they would gain in a
permanent home with adoptive parents. (In re K.P., supra, 203 Cal.App.4th at p. 621.)
“The factors to be considered when looking for whether a relationship is important and
beneficial are: (1) the age of the child, (2) the portion of the child‟s life spent in the
parent‟s custody, (3) the positive or negative effect of interaction between the parent and
the child, and (4) the child‟s particular needs.” (In re Angel B. (2002) 97 Cal.App.4th
4 In Hunter S., supra, 142 Cal.App.4th 1497, the child refused to visit with
the mother, and the mother had no visitation throughout the dependency proceeding. (Id.
at pp. 1501-1502.) The court found that a parent is denied due process if effective
visitation is denied. (Id. at pp. 1504-1505.)
19
454, 467, fn. omitted.) Mother and Father did not show that their relationship with K.
and A. was important and beneficial.
Father and Mother came to the attention of the Department due to their domestic
violence. Throughout the dependency proceedings, neither Father nor Mother ever
addressed the domestic violence issues. Father‟s anger escalated throughout the
proceedings. Father yelled at a social worker, calling her names and yelling obscenities.
He became so angry during a visit that he made K. and A. cry. The foster parents
reported that after this outburst, the children were fearful and anxious whenever the foster
parents would mention visitation with Father and Mother. This certainly was not a
beneficial relationship for K. and A. Mother did nothing to shield her children from
Father‟s angry outbursts.
Moreover, there was no evidence of a bonded relationship. Although K. and A.
recognized Father and Mother during visitation, and there were reports that Father and
Mother played with K. and A., there simply was no showing that they had a parental
bond. Both Mother and Father created an uneasy environment for the children. Mother
and Father failed to establish the existence of a beneficial parental that warrants reversing
the juvenile court‟s order.5
5 Father cites to the sibling exception in section 366, subdivision (c)(1)(B)(v)
in that C. was placed with a different adoptive family. Father and Mother never argued in
the juvenile court that the sibling exception applied. “The juvenile court does not have a
sua sponte duty to determine whether an exception to adoption applies.” (In re Rachel M.
(2003) 113 Cal.App.4th 1289, 1295, superseded by statute as stated in In re K.H. (2011)
[footnote continued on next page]
20
Moreover, even if Mother and Father could establish a beneficial relationship, they
cannot show that termination of the parental relationship was detrimental to K. and A.
(In re Bailey J., supra, 189 Cal.App.4th at p. 1315.) We review this determination under
an abuse of discretion standard. (Ibid.) Mother and Father had done almost nothing on
their case plans and had outbursts during visitation. Mother was only 19 years old and
had four children. Father was also young. Both of them needed to complete services to
help with their parenting, but they refused to participate. On the other hand, the children
had instantly bonded with their adoptive parents. Both K. and A. were happy, and K. was
thriving. The adoptive parents for K. and A. and the prospective adoptive parents for C.
were willing to maintain the sibling relationship. Based on the foregoing, the juvenile
court did not abuse its discretion by finding that the parental benefit exception did not
apply in this case and in terminating the parental rights of Mother and Father.
IV
ADOPTABILITY
Mother appeared to contend in her opening brief that the juvenile court erred by
refusing to grant a continuance of 120 days requested by the Department in order for it to
complete its adoption assessment. However, in her reply brief, she clarifies that she is
[footnote continued from previous page]
201 Cal.App.4th 406.) A parent who fails to raise an exception to the termination of
parental rights below, waives the right to raise the issue on appeal. (Rachel M., at p.
1295; In re Erik P. (2002) 104 Cal.App.4th 395, 402-403.) Mother and Father have
forfeited this argument on appeal.
21
arguing that the juvenile court erred by finding that K. and A. were adoptable by clear
and convincing evidence. The absence of the continuance diminished the evidence
supporting the finding of adoptability.
A. Additional Factual Background
In the section 366.26 report, the Department noted that A. and K. had just been
moved to the adoptive parents‟ home and that a continuance would be sought in order to
complete the adoption assessment. A hearing was conducted on July 16, 2012. Father
noted that a 120-day continuance had been requested by the Department in its June 27,
2012, report. However, the Department had filed an addendum report on July 5, 2012,
which contained the prospective adoptive assessment. The Department was ready to
proceed. Father wanted a continuance because he claimed he was not prepared to
proceed. A continuance to July 23, 2012, was ordered because of good cause for the late
filing of the adoption assessment. At the section 366.26, the Department recommended
adoption and was ready to proceed with termination of parental rights.
In ruling to terminate parental rights and ordering adoption as the permanent plan,
the juvenile court stated, “[I]t is likely that the minor children will be adopted[.]” It
found that adoption was in the best interests of K. and A.
B. Adoptability
We have previously stated that adoption is the permanent plan preferred by the
Legislature. (In re Autumn H., supra, 27 Cal.App.4th at p. 573.) “The juvenile court
may terminate parental rights only if it determines by clear and convincing evidence that
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it is likely the child will be adopted within a reasonable time. [Citations.] „“„“Clear and
convincing” evidence requires a finding of high probability. The evidence must be so
clear as to leave no substantial doubt. It must be sufficiently strong to command the
unhesitating assent of every reasonable mind. [Citations]‟” [Citations.]‟ [Citation.]
Review of a determination of adoptability is limited to whether those findings are
supported by substantial evidence. [Citation.]” (In re Carl R. (2005) 128 Cal.App.4th
1051, 1060-1061; see also In re Asia L. (2003) 107 Cal.App.4th 498, 509-510.)
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.) “[I]t is not
necessary that the minor already be in a potential adoptive home or that there be a
proposed adoptive parent „waiting in the wings.‟ [Citations.]” (Ibid.)
Here, K. and A. were generally adoptable. They both were developing normally
and had no disabilities. At one time K. had problems with anxiety. However, by the time
he was placed in the prospective adoptive home, he was happy and adjusting well.
Although the prospective adoptive home was the fourth placement for A. and K., it does
not impact this determination that they were generally adoptable. The first foster home
was not appropriate because the family only spoke Spanish, and in the second home,
unforeseen circumstances for the foster family required that K. and A. be moved. There
is no information as to why K. and A. were moved to the final adoptive home, but it is
not evidence that they were not generally adoptable.
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Moreover, even if we were to consider that K. had some developmental problems,
both K. and A. were specifically adoptable. “[I]n some cases a minor who ordinarily
might be considered unadoptable due to age, poor physical health, physical disability, or
emotional instability is nonetheless likely to be adopted because a prospective adoptive
family has been identified as willing to adopt the child.” (In re Sarah M., supra, 22
Cal.App.4th at p. 1650.) Thus, a child may be “deemed adoptable based solely on the
fact that a particular family is willing to adopt him or her . . . .” (In re Carl R., supra, 128
Cal.App.4th at p. 1061.)
By the time of the section 366.26 hearing, the Department had completed an
adoptive assessment. The prospective adoptive parents were willing to adopt K. and A.
Based on the foregoing, the juvenile court court‟s finding that the K. and A. would likely
be adopted was supported by the evidence.
V
DISPOSITION
The juvenile court shall order the Department to give notice in compliance with
ICWA and related federal and state law. Specifically, they shall be ordered to give valid
notice to the Cherokee Nation. Inquiry should be made of the paternal grandmother, or
any other family members, as to the birth date and middle name of Roy Jones. If
additional information is obtained, notice should also be given to the two other Cherokee
tribes.
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Once the juvenile court finds that there has been substantial compliance with the
notice requirements of ICWA, or if the information is not available, it shall make a
finding with respect to whether the children are Indian children. If the juvenile court
finds that the children are not Indian children, it shall reinstate the original order
terminating parental rights. If the juvenile court finds that the children are Indian
children, it shall set a new section 366.26 hearing and it shall conduct all further
proceedings in compliance with ICWA and related federal and state law.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
RAMIREZ
P. J.
HOLLENHORST
J.
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