Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of San Diego County, Super. Ct. No. J 515203 A-C, Gary M. Bubis, Judge.
Aaron, J.
C.G., the mother of Joshua G., S.G. and Shawn G., appeals the termination of her parental rights under Welfare and Institutions Code section 366.26. C.G. contends that the juvenile court erred by not continuing the section 366.26 hearing to obtain an up-to-date adoption assessment report, not considering the oldest child's wishes regarding adoption, finding that the children are likely to be adopted, and finding that the beneficial parent-child relationship exception to adoption does not apply. C.G. also complains that the adoption assessment report does not include sufficient information concerning the developmental, mental and emotional status of the two older children. Christopher N., the father of Joshua and Skylah, also appeals and joins in C.G.'s arguments. (Cal. Rules of Court, rule 8.200(a)(5).)
Statutory references are to the Welfare and Institutions Code unless otherwise specified.
FACTS
On December 6, 2005, the San Diego County Health and Human Services Agency (Agency) took Joshua, then two years old, into protective custody after a preschool employee noticed bruising on his buttocks, lower back and upper leg. C.G. initially said that she had caused the bruising by hitting Joshua with a narrow belt. Shawn B., C.G.'s live-in boyfriend, told the maternal grandmother that he had spanked Joshua with his hands and had caused the bruising.
C.G. later recanted, saying that Shawn B. had caused the bruising by spanking Joshua while she was bathing S.G. C.G. said that she initially took the blame for Joshua's injuries because Shawn B. was on parole.
On December 9 Agency filed a dependency petition on behalf of Joshua, alleging that he had suffered serious physical harm inflicted non-accidentally by his parent (§ 300, subd. (a)) and that he was at substantial risk that he would suffer serious physical harm because Shawn B. spanked him as a form of discipline (§ 300, subd. (b)). Agency also filed a dependency petition on behalf of S.G., then three years old, alleging that she was at substantial risk of harm because of the physical abuse of Joshua in the home. (§ 300, subd. (j).)
On January 23, 2006, C.G. gave birth to Shawn G.; the father was Shawn B. The baby appeared healthy and was not removed from C.G.
Shawn B. is not a party to this appeal.
On January 30 the juvenile court struck the physical abuse allegation and sustained the dependency petitions on behalf of Joshua and S.G. (§ 300, subd. (b).) The court declared Joshua and S.G. dependents and placed them in the home of the maternal great-grandmother, with permission for C.G. to live in the home with the children. The court ordered reunification services for C.G. and Christopher N. Christopher was incarcerated at the time on a drug charge.
That summer, the maternal great-grandmother became ill and was hospitalized. A visiting maternal great-aunt from Illinois decided to stay in California to care for the children, who began living with her in early July.
On July 10 Agency filed a dependency petition on behalf of Shawn G., alleging that he was at substantial risk of harm because of domestic violence between Shawn B. and C.G. (§ 300, subd. (b)), and also because of the previous physical abuse of Joshua (§ 300, subd. (j)).
On July 26 the court sustained Shawn G.'s dependency petition.
On October 26 the court held the contested six-month review hearing for Joshua and S.G., and the disposition hearing for Shawn G. The court ordered services to the 12-month date in the older children's case. The court declared Shawn G. a dependent child and placed him in relative care with Joshua and S.G.
On December 15 Agency filed a section 387 petition, alleging that the children needed a new placement because the out-of-state relatives had moved, and the great-grandmother could not care for the children alone. The court placed the children in foster care, and gave Agency discretion to place the children with relatives. In late February 2007 paternal relatives in Georgia were approved under the Interstate Compact on Placement of Children.
On March 1 the court terminated reunification services, set section 366.26 hearings for the children, and placed them with the relatives in Georgia. C.G. moved to Georgia in order to be able to visit the children.
In its adoption assessment report dated June 28, 2007, Agency noted that the children were in good health except for asthma, and that they were developmentally on target. S.G. was diagnosed with oppositional defiant disorder, and Joshua was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) as well as possible post-traumatic stress disorder. Shawn G. had no reported difficulties. Agency assessed the children as adoptable because the Georgia relatives wanted to adopt the children and there were 36 families, including one local family, who were willing to adopt the children as a sibling group.
On August 7 Agency filed a section 387 petition, alleging that S.G. had been sexually abused by her relative caregiver in Georgia. S.G. had disclosed the molestation to C.G.
The children were returned to San Diego and placed in foster care. The children began having unsupervised visits with a local prospective adoptive family. This family had been approved to adopt in 2002, but needed an updated evaluation. The social worker reported that the children were bonding with the prospective adoptive family and that the children were highly affectionate with the family.
When the social worker met the children after they returned from Georgia, S.G. spontaneously told her that she had "a lot of mommies" and named several people, but did not include C.G. The social worker noted that the children's reaction to C.G. was the same as their reaction to social workers who supervised the visits.
At the contested section 366.26 hearing on August 14, C.G. requested a continuance because the June 28 adoption assessment report did not contain details about the local prospective adoptive family. The court denied the request, noting that the matter was addressed in an addendum report and that new information could be provided through the social worker's testimony.
Social worker Fatima Abdullah testified that the Georgia social worker had reported that during visits, Joshua did not interact with C.G., Shawn G. often played with C.G. and was clingy, and S.G. would occasionally show affection toward C.G. The children appeared to enjoy the visits, but separated easily. S.G. told the Georgia social worker that she did not want to return to C.G.
Abdullah testified that the relationship between C.G. and S.G. was friendly but not parental. According to Abdullah, Joshua appeared not to have any relationship with C.G., and Shawn G. was generally "a clingy baby" with everyone. After they returned to San Diego from Georgia, the children did not ask to see C.G.
Abdullah said that confidentiality issues made it difficult for her to respond to some questions about the prospective adoptive family. The social worker said that there was no indication of any legal impediment that would cause the family's home evaluation update to be denied. The family had served as foster parents since 2002, and was very motivated to adopt. The family was aware of S.G.'s and Joshua's psychological issues and the allegations of sexual abuse.
C.G. testified that the children were always happy to see her and that they gave her hugs. C.G. always brought healthy food or snacks to the visits. The children always turned to C.G. to meet their needs during the visits.
The court found that the children were likely to be adopted within a reasonable time. The court observed that the children's multiple placements did not reflect problems with the children, but rather, the high level of dysfunction within their extended family. The court found that none of the statutory exceptions to adoption applied. The court terminated parental rights and selected adoption as the children's permanent plan.
DISCUSSION
I. Denial of Request to Continue Section 366.26 Hearing
C.G. contends that the juvenile court should have granted her request to continue the section 366.26 hearing because the adoption assessment report did not contain any information about the current prospective adoptive family.
The juvenile court may grant a continuance only if there is a showing of good cause and the continuance is not contrary to the child's best interests. (§ 352, subd. (a).) The court must " 'give substantial weight to a minor's need for prompt resolution of his or her custody status, the need to provide children with stable environments and the damage to a minor of prolonged temporary placements.' " (In re J.I. (2003) 108 Cal.App.4th 903, 912.)
When services are terminated and a section 366.26 hearing is set, the juvenile court must direct the social services agency to prepare an adoption assessment report that includes, among other things, "[a] preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent . . . to include a social history including screening for criminal records and prior referrals for child abuse or neglect, the capability to meet the child's needs, and the understanding of the legal and financial rights and responsibilities of adoption . . . ." (Former §§ 366 .21, subd. (i)(4), 366.22, subd. (b)(4), now §§ 366.21, subd. (i)(1)(D), 366.22, subd. (b)(1)(D).)
Effective January 1, 2008, the Legislature amended and renumbered sections 366.21, subdivision (i) and 366.22, subdivision (b). (Stats. 2007, ch. 583, §§ 26.5 and 27.5.) Because these proceedings occurred before the statutory change, we refer to the earlier version of the statute.
The purpose of the assessment report is to provide the juvenile court with information necessary to determine whether adoption is in a child's best interests. (See In re Dakota S. (2000) 85 Cal.App.4th 494, 496.) An assessment report need not be entirely complete as long as it is in substantial compliance with statutory requirements. (In re John F. (1994) 27 Cal.App.4th 1365, 1378.) Where an assessment is deemed incomplete, the reviewing court looks at the totality of the evidence before it; deficiencies go to the weight of the evidence and may prove to be insignificant. (Ibid.)
The June 28 adoption assessment report was prepared before the children were removed from their relatives in Georgia. The report anticipated that these relatives would adopt the children and therefore included specific information regarding the relatives. The report also addressed the children's general adoptability, noting that one local family was interested in adopting a sibling group with the characteristics of Joshua, S.G. and Shawn G., and that there were 35 out-of-county similarly interested prospective adoptive families.
In an addendum report for the section 366.26 hearing on August 14, the social worker noted:
"The children have been temporarily placed in a confidential home until completion of the certification of the prospective adoptive family's home. Meanwhile, the prospective adoptive family is engaging in liberal unsupervised visits with the children. The prospective adoptive family previously had an approved Adoptive Home Study with the agency in 2002 and it is in the process of being updated. According to their applicant worker . . . they have submitted [the] majority of the paperwork it is likely to be completed in September 2007. The prospective adoptive family is also interested in placement of [C.G.'s] unborn child, if the child is declared a dependent as well."
The addendum report also noted that the "children appear to be bonding with the prospective adoptive family and display highly affectionate behaviors in their presence."
Through her testimony, the social worker was able to augment the adoption assessment report and provide information about the current prospective adoptive family. The social worker testified that she knew of no legal impediment to approval of the local prospective adoptive family's home study, and said that she did not have any concerns about the prospective adoptive family. The couple had been foster parents since 2002. The social worker said that the prospective adoptive parents were very motivated to adopt the children, that they were able to meet the children's needs, and that they understood the legal and financial responsibilities of adoption. The prospective adoptive family was aware of the two older children's psychological diagnoses and the sexual molestation allegations.
The addendum to the adoption assessment report, together with the social worker's testimony, provided sufficient information concerning the prospective adoptive family for the court to proceed with the section 366.26 hearing. The court thus did not abuse its discretion in denying C.G.'s request for a continuance. (In re Ninfa S. (1998) 62 Cal.App.4th 808, 810-811.)
II. Adequacy of Adoption Assessment Report
C.G. challenges Agency's adoption assessment, contending that it did not contain sufficient information concerning Joshua's and S.G.'s developmental, mental and emotional status.
The adoption assessment report must include an evaluation of the child's medical, developmental, scholastic, mental and emotional status. (Former §§ 366 .21, subd. (i)(3), 366.22, subd. (b)(3)); In re Crystal J., (1993), 12 Cal.App.4th 407, 411.)
C.G. did not object to the assessment report on the ground that it lacked an evaluation of Joshua's and S.G.'s developmental, mental and emotional status. Failure to object to an assessment report at the section 366.26 hearing waives or forfeits the issue of the report's inadequacy. (In re Crystal J., supra, 12 Cal.App.4th at p. 411.) Assuming arguendo that C.G. preserved the issue, there was no error. Here, the adoption assessment report included an evaluation of the children's medical, developmental, and mental and emotional status. With respect to Joshua's and S.G.'s mental and emotional status, the report noted:
"S.G. is adjusting to the [Georgia] placement and has some emotional struggles as she has witnessed a significant amount of familial dysfunction. She has been diagnosed with Oppositional Defiant Disorder (ODD) and Physical Abuse of a Child with a history of neglect. S.G. is receiving weekly therapy at Highland Rivers Center.
"Joshua is adjusting to the placement and has some emotional struggles as well. He has been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD), combined type, Post Traumatic Stress Disorder - chronic, and Physical Abuse of a Child with a history of neglect. Joshua is receiving bi-weekly therapy at Highland Rivers Center. It has been recommended for Joshua to also receive medication to assist in treatment."
As to S.G.'s and Joshua's developmental status, the report noted that each appeared to be developing at an age appropriate level.
Thus, the assessment report complied with the statutory requirement that it include an evaluation of the children's medical developmental and mental and emotional status.
C.G. complains that the report's evaluations of S.G.'s and Joshua's mental and emotional status were inadequate because they were more like "an abbreviated synopsis" than a careful appraisal. In this vein, C.G. also asserts that the children were not evaluated by a qualified professional. C.G. is mistaken. In an attachment to the assessment report, the children's therapist in Georgia states that both S.G. and Joshua received psychological and psychiatric evaluations.
However, we note that the social worker testified that S.G. only saw a therapist and did not see a psychiatrist.
III. S.G.'s Views on Adoption
The adoption assessment report is required to include a statement from the child concerning adoption unless the child is too young to give a meaningful response. (Former §§ 366.21, subd. (i)(5), 366.22, subd. (b)(5).) C.G. did not object to the assessment report on this ground and therefore has forfeited the issue with respect to the report. (In re Crystal J., supra, 12 Cal.App.4th at p. 411.)
However, section 366.26, subdivision (h) requires the juvenile court to consider the wishes of a child. This provision has been construed to mean that the court has a duty to consider the child's wishes to the extent ascertainable, before terminating parental rights. (In re Leo M. (1993) 19 Cal.App.4th 1583, 1591.) The juvenile court should explore a child's feelings toward his or her parents, foster parents, and prospective adoptive family, if any. (In re Amanda D. (1997) 55 Cal.App.4th 813, 820.) The juvenile court may rely on evidence found in the department's reports. (Ibid.)
C.G. is correct that the assessment report did not contain a statement from S.G. concerning the child's views on adoption. However, the adoption social worker was assigned to the case after the children had been placed in the relatives' home in Georgia and, at the time the worker prepared the report, she had not met or spoken with S.G. When the social worker first met S.G., the child told her that she had numerous mothers but did not list C.G. as one of them.
At trial, the social worker testified that she attempted to discuss adoption in general terms with S.G., but believed the child "didn't have a total grasp of it. She is only four years old." (See In re Cody S. (1997) 56 Cal.App.4th 230, 233-234 [four-year, seven-month-old child may be too young to provide meaningful statement regarding adoption].)
In In re Leo M., supra, 19 Cal.App.4th at page 1592, the Court of Appeal noted that it is not always possible or in the child's best interests to obtain a direct statement from the child concerning his or her feelings regarding termination of parental rights and adoption.
"For example, some children are simply too young or too immature to understand the concept of termination of parental rights, let alone express their feelings about such a prospect, while others may be permanently and severely traumatized if asked to grapple with the possibility of severing all ties to their biological parents.
"The process must be sufficiently flexible to provide some accommodation to the varying circumstances that will inevitably present themselves. Therefore, we believe the decision in a termination action whether to require a direct statement from the minor regarding his/her thoughts is one that is best left to the sound discretion of the trial judge."
"Error cannot be predicated on the juvenile court's failure to consider the express wishes of the child when the child is not capable of adequately expressing those wishes." (In re Juan H. (1992) 11 Cal.App.4th 169, 173.) Literal compliance with the statutory language is excused when the child is too young to provide a meaningful statement regarding adoption. (See In re Leo M., supra, 19 Cal.App.4th at pp. 1592-1593; In re Juan H., supra, 11 Cal.App.4th at pp. 172-173.
IV. Adoptability Finding
"The issue of adoptability posed in a section 366.26 hearing focuses on the minor, [i.e.], 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.) "[A] prospective adoptive parent's willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family." (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) An adoptability finding does not require "that the minor already be in a potential adoptive home or that there be a proposed adoptive parent 'waiting in the wings.' " (In re Sarah M., supra, 22 Cal.App.4th at p. 1649.) "All that is required is clear and convincing evidence . . . that adoption will be realized within a reasonable time." (In re Zeth S. (2003) 31 Cal.4th 396, 406.) Neither a risk of future developmental problems (In re Jennilee T. (1992) 3 Cal.App.4th 212, 224-225) nor the onset of behavioral problems (In re Lukas B., supra, 79 Cal.App.4th at p. 1154) necessarily precludes an adoptability finding. The Agency bears the burden of proving adoptability. (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1557, 1560-1561.)
There is substantial evidence supporting the court's finding that the children are adoptable. (In re Josue G. (2003) 106 Cal.App.4th 725, 732.) The children are in general good health, and developmentally on target. Although Joshua and S.G. have had psychological problems, the children received their diagnoses while they were in an apparently disfunctional placement. Joshua's and S.G.'s behaviors improved after they were removed from that placement. The current foster parents reported that the children are easy to handle, and that the children have settled in and adjusted to the family quickly. The prospective adoptive family is aware of Joshua's and S.G.'s psychological problems and of the sexual molestation allegations.
In the event that the local prospective adoptive family does not adopt Joshua, S.G. and Shawn G., Agency identified 35 other approved adoptive families that are willing and able to adopt a sibling group with similar characteristics. The evidence of these families "willing to adopt a child of [this] 'age, physical condition, and emotional state' " is relevant to evaluating the likelihood of a child's adoption. (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205.) In addition, it is the social worker's expert opinion that the children's young age, good physical health, and lack of serious developmental issues favor their being adopted. (See In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1421 [social worker is qualified as expert to opine about child's adoptability under Evid. Code, § 720].) The court was entitled to find the social worker's opinion credible, and to give great weight to her assessment. We cannot reweigh the evidence or substitute our judgment for that of the trial court. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) Substantial evidence supports the court's finding of adoptability of the sibling group.
Because substantial evidence supports the finding that the three children are adoptable as a sibling group, we need not address C.G.'s argument that if any one of the three children is not adoptable then the sibling relationship will be put in jeopardy.
V. Beneficial Parent-Child Relationship Exception to Adoption
C.G. contends that the court erred by finding that the beneficial parent-child relationship exception to adoption does not apply.
Adoption is the permanent plan preferred by the Legislature. (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) Section 366.26, subdivision (c)(1), allows termination of parental rights upon clear and convincing evidence of adoptability. An exception exists if "[t]he parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (Former § 366.26, subd. (c)(1)(A), now § 366.26, subd. (c)(1)(B)(i).) Agency concedes that C.G. met the first prong of the statute; she visited the children regularly. However, the exception applies only if both prongs are met. (Ibid.)
Effective January 1, 2008, the Legislature amended and renumbered section 366.26, subdivision (c)(1). (Stats. 2006, ch. 838, § 52.) Because these proceedings occurred before the statutory change, we refer to the earlier version of the statute.
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 "[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.)
"To overcome the preference for adoption and avoid termination of the natural parent's rights, the parent must show that severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed." (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) "A biological parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent." (Ibid.)
On appeal, we review the juvenile court's findings to determine whether there is substantial evidence to support them; we do not reweigh the evidence or substitute our judgment for that of the juvenile court. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)
Of the three children, S.G. had the closest attachment to C.G., but that attachment had waned over the course of the dependency as the children were moved from one placement to another. C.G.'s relationship with S.G. was no longer parental, but rather, was more like that of a friendly visitor. For the most part, Joshua ignored C.G. during visits. Although Shawn G. wanted C.G.'s attention during visits, he was "clingy" with everyone.
During this dependency, Joshua and S.G. had seven placements, and Shawn G. had five placements. The social worker opined that the children needed a stable, permanent home after having experienced these multiple placements and multiple caregivers.
There is substantial evidence supporting the court's finding that the exception under former section 366.26, subdivision (c)(1)(A) does not apply.
Because each of C.G.'s claims is without merit, her claim that the errors, taken together, were prejudicial also fails. (See People v. Cole (2004) 33 Cal.4th 1158, 1235-1236 [cumulative effect of purported errors does not require reversal where court has rejected all claims of error].)
DISPOSITION
The judgments are affirmed.
WE CONCUR: McINTYRE, Acting P. J., IRION, J.