Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. JD226396, JD226397, JD226398
MAURO, J.
Mother and father appeal a juvenile court order terminating parental rights to their three children. Father contends that the juvenile court erred in finding the oldest child adoptable, because the child’s conditional consent to adoption created a legal impediment. Moreover, both parents assert that the juvenile court erred in rejecting the “child objection” and “beneficial relationship” exceptions to termination of parental rights. We conclude that (1) there is clear and convincing evidence supporting the juvenile court’s finding that oldest child was adoptable, (2) the “child objection” exception does not apply because substantial evidence supports the juvenile court’s finding that oldest child did not unequivocally object to adoption, and (3) the “beneficial relationship” exception does not apply because parents did not meet their burden to establish that terminating parental rights would greatly harm the children by depriving them of a substantial, positive emotional attachment. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Parents were married in 1997, and over the course of the next 10 years had a violent and difficult relationship which included domestic violence and substance abuse. They had three children. Oldest child (a daughter) was born in 1997, middle child (a daughter) was born in 2002, and youngest child (a son) was born in 2003.
Parents regularly left the children with the maternal grandparents for extended periods of time, and during frequent household emergencies, the children would call their maternal grandmother to come and get them. In March 2007, mother became involved in another relationship which included domestic violence. After a violent argument with her boyfriend in July 2007, mother took the children to the maternal grandmother’s home and left them there, saying she would return for them in a few days. From July to September 2007, mother maintained telephone contact with the children, but maternal grandmother did not know where mother was and had no way to contact her. During this time, father visited the children on weekends but did not have an appropriate home for them.
In September 2007, the Department of Health and Human Services (DHHS) filed petitions alleging the children came within the provisions of Welfare and Institutions Code section 300, subdivisions (b) and (g). The petitions specifically alleged that (1) mother and her boyfriend engaged in domestic violence in front of the children, (2) father and mother engaged in domestic violence in front of the children, (3) mother’s continued involvement in domestic violence relationships put her children at risk, (4) mother abandoned the children with the maternal grandparents, and (5) father’s anger put the children at risk. The juvenile court sustained the allegations in the petition, adjudged the minors dependents, removed them from parental custody, and placed the children with their maternal grandparents. Reunification services were ordered for the parents.
Further undesignated statutory references are to the Welfare and Institutions Code.
Mother moved to New Jersey in January 2008 and returned to California in April 2008. She did not visit with the children during that time, but spoke with them regularly on the telephone. Father regularly visited with the children. By November 2008, both parents had been participating in reunification services and visiting the children.
Middle child was exhibiting increasingly defiant behaviors at home and in school. The behavior was too difficult for maternal grandmother to handle, so oldest child and middle child were moved to their maternal aunt’s home for placement, a move which both children supported. Oldest child wanted to live with maternal aunt because she believed her parents were still drinking and had not “taken care of their issues.” Middle child wanted to live with mother if she was “clean, ” but if mother was not “clean, ” middle child’s first choice was to live with her maternal aunt. Middle child was emotionally bonded to her family members. Youngest child looked to maternal grandparents for affection and was particularly bonded with maternal grandfather. Youngest child remained placed with maternal grandparents.
Mother subsequently reported that she and father were “back together.” Neither parent was complying with reunification services. Reunification services were terminated and the matter was set for a section 366.26 hearing.
Visits between the parents and the children generally went well and were appropriate and positive. Despite the overall sense that visits were positive and appropriate, however, there were also indications of negative effects on the children. In April 2008, as part of a mental health referral to address middle child’s anger, it was reported that telephone contact with mother increased middle child’s anxiety levels. In September 2008, middle child’s therapist reported concerns about “the children and their unsupervised visits with the father.” Also in September 2008, after a conversation with father in which father was crying, oldest child feared father might harm himself and she became extremely tearful and anxious. In January 2009, oldest child knew her parents were still drinking because they would come to visits with red eyes and smelling of alcohol. After reunification services were terminated in February 2009, the parents had weekly two-hour visits with the children.
The children had various medical and emotional problems. Youngest child was diagnosed with autism and had global developmental delays. He attended a special school and occupational therapy. Youngest child was making significant progress verbally, academically and socially. His behavior at school had improved and he threw fewer tantrums. A psychological evaluation described him as “a very fragile child, who, despite his progress, is at high risk for regression into more severe autistic behavior if he is placed in an unstable living situation.” His teacher reported he had made “tremendous progress” since being placed with his maternal grandparents and credited his current living environment with the positive changes in his behavior and personality.
Middle child was diagnosed with post-traumatic stress disorder. She displayed aggressive behaviors and symptoms associated with reactive attachment disorder, and she was sometimes moody and temperamental. Academically, she was performing below grade level, but she was improving and appeared to be functioning within the normal developmental range.
Oldest child had learning disabilities and required special education services. She was struggling with “sleep difficulties, irritability, anger management difficulties, argue[d] with her sister and [maternal aunt] almost daily, and [was] having difficulty processing through the loss of her parents and dealing with the adoption process.” She suffered from anxiety and depression over family difficulties, specifically related to the trauma she had been through in witnessing domestic violence for several years and grief over the loss of her parents.
Throughout the proceedings, oldest child made it abundantly clear she did not want to live with her parents if mother and father were living together. In November 2008, oldest child was continuously reporting being terrified of returning to live with her parents. She believed they had not progressed in their services and both continued to consume alcohol. Because parents told her they were going to get an apartment together, oldest child did not want to be returned to them. By January 2009, oldest child wanted to continue living with the maternal aunt for a “very, very long time” and continue visiting with her parents. She also reported she would not live with her parents even if forced. She did not trust her mother and was uncomfortable with the idea of living with her father, as she had never lived with him alone.
As of May 2009, maternal aunt reported the visits with parents were beneficial to oldest child and middle child. The girls wanted the visits to continue with the parents, even if they were adopted by the maternal aunt. Oldest child enjoyed living with her maternal aunt and wanted to be adopted by her. Both parents were in favor of the maternal relatives adopting the children.
Based on their special needs and their ages, the social worker determined the children were specifically adoptable by their maternal relatives. To allow for completion of the home study process, the section 366.26 hearing was continued for 90 days.
By August 2009, however, oldest child was becoming increasingly unhappy in her placement. She was more oppositional, was displaying anger management issues and did not want to participate in services with her maternal aunt. Middle child said she wanted more visits with her parents and reported she would “not make it” without visits with her parents. Nonetheless, middle child was getting along with the maternal aunt. Both girls had initially reported they wanted to be adopted, but that preference vacillated in the last few months. Visits continued with the parents, as well as numerous phone calls throughout the day. Oldest child reportedly spoke with her parents up to 12 times a day. The social worker believed this level of contact was disruptive to oldest child’s emotional stability and was responsible for her behavioral regression. Oldest child’s therapist initially believed reducing visits between oldest child and parents would have a negative effect on oldest child, but later revised that opinion. The therapist ultimately concluded the visits with parents were disruptive and should be decreased. The social worker believed at the time that a permanent plan of adoption for the girls was premature, but continued to recommend adoption for youngest child.
In September 2009, minor’s counsel indicated both girls wished they could live with their parents and that visits with the parents went well. The girls also reported, however, that their aunt was taking good care of them.
Nonetheless, in November 2009, the maternal aunt reported both girls wanted to be adopted by her. Ten days later, the social worker met with the girls. Middle child confirmed she wanted to be adopted by the maternal aunt. Oldest child stated she “did not care one way or other about being adopted, ” she just wanted to be able to see her mother. The maternal grandmother reported that oldest child told her parents she wanted to be adopted by the maternal aunt. By that point, the social worker recommended adoption as the permanent plan for all three children.
A contested section 366.26 hearing was held on January 8, 2010. Oldest child, who was 12 years old at the time, testified at the hearing. Initially, oldest child testified she had no objection to being adopted by her maternal aunt. But because she was having difficulty testifying in open court, the parties agreed to allow her to speak privately with the judge. In chambers, oldest child indicated that she understood that adoption meant parental rights would be terminated and it would be in her aunt’s discretion whether she would see her parents. Oldest child expressed concern that her aunt would not let her see her parents and that such a restriction would pose a problem for her. Oldest child did not know if maternal aunt would prevent contact with her parents, but it would change oldest child’s feelings about being adopted if maternal aunt prevented such contact. If her aunt would allow her continuing contact with her parents, oldest child had no objection to being adopted. However, if her aunt would not allow contact with her parents, oldest child did not want to be adopted. Oldest child agreed it would make her more comfortable if her aunt assured her that she would allow contact to continue. The court reiterated oldest child’s position: “[Oldest child’s] concern is that there be post adoptive contact with her parents. If she can’t be assured that that is going to be permitted, then she does not want to be adopted. It’s that simple. [¶] That’s why I need to hear from the aunt, and I think I made myself clear before we went on the record earlier, she’s old enough that she does not have to sign the consent form or the agreement, and if she tells me today that she’s not going to which she has essentially told me that if the aunt gets on the stand and says I will not allow any post adoptive contact with the mother or the father, [oldest child] does not want to be adopted. If she will, then she does.” Oldest child confirmed this was her position.
The maternal aunt testified that she was willing to allow postadoptive contact between oldest child and her parents. Maternal aunt acknowledged that her relationship with mother was not “the best.” But maternal aunt assured the court that even if her relationship with mother deteriorated completely, maternal aunt would still allow postadoptive contact between oldest child and mother as long as it remained in oldest child’s best interests.
Mother and father also testified at the hearing. They visited with all three children together, once a week for roughly two hours. They played, got ice cream and jumped rope. Oldest child was particularly happy to see them and would run up to them and hug them. She liked to show mother her new website, pictures and her friends. Middle child was also enthusiastic and would run up, hug them and give them “bunches of love.” She liked playing board games. Sometimes, they would watch shows together. Middle child cried when visits ended. Oldest child would get sad, but “sucks it up.” Within a few minutes of the visit ending, they would be on the phone with mother. Mother spoke with oldest child five or six times a day, and with middle child almost as often. Father also spoke on the phone regularly with his daughters. Mother was worried that if her parental rights were terminated, the maternal aunt would not allow her to see the girls. Mother acknowledged, however, she had no reason to disbelieve maternal aunt’s testimony that she would allow continuing contact.
Youngest child’s reactions to the parents at visits had changed over time. Previously he was happy to see them, but most recently he said he was “Grandma’s big boy, ” not mother’s. When visits ended, youngest child was “okay.” Mother only spoke with youngest child on the phone a few times in the preceding month and a half. Prior to that, mother spoke with youngest child about every other day. Father also had more difficulty contacting youngest child by phone.
In assessing oldest child’s conditional consent to adoption, the court found oldest child made clear “if the aunt agreed that she could have post adoptive contact that she did not object to adoption. The aunt came in to court and testified under oath that she would allow post adoptive contact. And if you put those two things together, clearly [oldest child] does not object to the adoption happening based upon those representations by the aunt.” The court went on to find the children were adoptable, that no exceptions to the termination of parental rights applied, ordered adoption as the permanent plan and terminated parental rights.
DISCUSSION
I
Father contends the juvenile court erred in finding oldest child adoptable, because oldest child’s “conditional” consent created a legal impediment to her adoption.
On review of a juvenile court finding of adoptability, we determine whether the record contains substantial evidence from which the juvenile 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 In re Zeth S. (2003) 31 Cal.4th 396, 406.) “We give the court’s adoptability finding the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of the judgment. [Citation.]” (In re Valerie W. (2008) 162 Cal.App.4th 1, 13.) Generally, adoptability focuses on “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.) But where the minor is likely to be adopted only because a particular person is willing to adopt her, an inquiry may be made into whether there is a legal impediment to adoption by that person. (Id. at p. 1650.) Family Code section 8602, which requires the consent of a child over the age of 12 to an adoption, is one such potential legal impediment. (Sarah M. at p. 1650; see also Sharon S. v. Superior Court (2003) 31 Cal.4th 417, 428-429.)
The juvenile court was not required to find that there was not and would never be any legal impediment to adoption. “All that is required is clear and convincing evidence of the likelihood that adoption will be realized within a reasonable time.” (In re Zeth S., supra, 31 Cal.4th at p. 406.) In this case, this assessment requires a determination of whether a legal impediment to adoption is likely to be realized; if there was clear and convincing evidence that oldest child was likely to consent to adoption, the court properly found her adoptable.
Here, the record shows that oldest child was not opposed to being adopted by her aunt. In fact, except for a brief time, she was unequivocal in her desire to be adopted by her aunt. At the section 366.26 hearing, oldest child repeatedly stated she was “fine” with being adopted by her aunt. Her only concern about adoption was that she be allowed to have continuing contact with her parents. She stated she would not consent to the adoption if she was not assured by her aunt that she could continue to have contact with her parents. The aunt gave that assurance in her testimony, confirming that she would continue to allow contact between oldest child and parents, irrespective of the state of maternal aunt’s relationship with them, as long as that was in oldest child’s best interests.
Maternal aunt’s conduct during the course of the proceedings further supports her testimony and provides additional assurance. The relationship between maternal aunt and mother was not “the best” and if it were up to maternal aunt, she would probably not continue to have contact with mother. Nonetheless, maternal aunt facilitated visits between oldest child and parents and did not interfere in their regular daily phone contact. The visits usually took place at the maternal aunt’s home and were supervised by her. Although the visits were supposed to last only two hours, sometimes maternal aunt let them continue longer. Maternal aunt stated she sometimes wished oldest child could see her parents more often, but she could not because of the court orders. It is reasonable to infer from this that maternal aunt is open to increased contact between oldest child and the parents, once maternal aunt is in the position to make those ultimate determinations. Mother acknowledged she had no reason to believe that maternal aunt would not allow postadoptive contact. There is nothing in the record which supports a contrary conclusion. Accordingly, we find there is clear and convincing evidence supporting the trial court’s finding that oldest child was adoptable.
II
Both parents contend that the juvenile court erred in rejecting the “child objection” and “beneficial relationship” exceptions to termination of parental rights.
At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must choose one of the several “‘possible alternative permanent plans for a minor child.... The permanent plan preferred by the Legislature is adoption. [Citation.]’ [Citations.] If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child.” (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368, italics omitted.) There are only limited circumstances which permit the court to find a “compelling reason for determining that termination would be detrimental to the child.” (§ 366.26, subd. (c)(1)(B).) One circumstance could be where the parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship (the “beneficial relationship” exception). (Id. at subd. (c)(1)(B)(i).) Another circumstance could be where a child 12 years of age or older objects to termination of parental rights (the “child objection” exception). (Id. at subd. (c)(1)(B)(ii).)
We review the court’s findings for substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576; In re Christopher L. (2006) 143 Cal.App.4th 1326, 1333 (Christopher L.).) “If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings. [Citation.] We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. Rather, we draw all reasonable inferences in support of the findings, view the record most favorably to the juvenile court's order, and affirm the order even if other evidence supports a contrary conclusion. [Citations.]” (Christopher L., supra, 143 Cal.App.4th at p. 1333.) The party claiming the exception has the burden of establishing the existence of any circumstances which constitute an exception to termination of parental rights. (In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252; Evid. Code, § 500.)
A
We first address parents’ contention that oldest child’s objection to adoption is a compelling reason for finding that termination of parental rights would be detrimental to her. To establish the “child objection” exception to termination of parental rights, the minor's statements must constitute an unequivocal objection to adoption, not merely expressions of conflicting preferences. (In re Christopher L., supra, 143 Cal.App.4th at pp. 1334-1335.) In addressing whether the child's testimony constituted an objection to adoption, we do not consider the statements in a vacuum, and our review of the dependency court's conclusions is deferential. (Id. at p. 1335.) Here, oldest child’s statements were not an unequivocal objection to adoption, especially when viewed in the context of the entire proceeding.
Father argues that the instant case is distinguishable from Christopher L., supra, 143 Cal.App.4th 1326. But throughout most of this proceeding, just like in Christopher L., oldest child indicated she liked living with her aunt, wanted to continue living with her aunt, wanted to be adopted, and wanted to continue visiting with her parents. She also repeatedly indicated she did not want to live with her parents and even expressed terror over the idea. While she was bonded to her parents, she was also bonded to her maternal aunt. In August 2009, oldest child expressed unhappiness with her placement situation, but by November 2009 she stated she wanted to be adopted. Any perceived conflict in oldest child’s position on adoption was resolved by her trial testimony in which she clarified she had no objection to being adopted by her aunt, she just wanted assurance she would be able to continue to see her mother.
Oldest child’s statements regarding adoption were similar to the statements in Christopher L., where the minor repeatedly stated he wanted to be adopted by his aunt and uncle and wanted to live with them. He also stated he did not want to be adopted if he could not see his mother again. (Christopher L., supra, 143 Cal.App.4th at p. 1335.)
Viewing the record as a whole, it was reasonable for the court to resolve conflicts in favor of finding that oldest child did not object to adoption. We need not construe oldest child’s desire to continue to see her parents “as undermining or being contrary to [her] wish to be adopted by [her] aunt.” (Christopher L., supra, 143 Cal.App.4th at p. 1335.) Substantial evidence supports the juvenile court's finding that oldest child’s statements were not an unequivocal objection to being adopted, and parents do not meet their burden on this issue.
B
We turn next to parents’ contention that the “beneficial relationship” exception applies to all three children. To claim this exception, parents must establish they have “maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) The benefit to the child must promote “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 other words, the 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.” (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
“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. [Citation.] While the exact nature of the kind of parent/child relationship which must exist to trigger the application of the statutory exception to terminating parental rights is not defined in the statute, the relationship must be such that the child would suffer detriment from its termination. [Citation.]” (In re Angel B. (2002) 97 Cal.App.4th 454, 467, fn. omitted.)
Here, there is no question that parents maintained consistent contact with the children. The question is whether the children would suffer detriment from the termination of the parental relationship.
As to all three children, even before the commencement of these proceedings, they spent extended periods of time in the custody and care of their maternal grandparents and looked to them in times of crisis. Furthermore, there was evidence the parents appeared for visits still suffering from the effects of their alcohol consumption, red-eyed and smelling of alcohol.
With respect to the youngest child, there is no evidence that he would be harmed by the termination of parental rights. Youngest child was almost four years old when he was removed from his parents’ custody. He has lived with his grandmother the entire two years and four months between removal and termination, thus over one-third of his life has been lived outside his parents’ custody. He has autism and special educational needs which are being met by his grandmother. He is “okay” when visits with his parents end, he has limited contact with them outside of visits, and he is demonstrating a decreased attachment to them. Conversely, youngest child is significantly attached to his grandparents, particularly his maternal grandfather. He is making tremendous behavioral progress living with his maternal grandparents, which is largely attributable to the living environment they have created for him. Youngest child is also a fragile child who is at significant risk if his living situation were to become unstable. On this record, the court did not err in finding the “beneficial relationship” exception did not apply to youngest child.
With respect to the middle child, she was almost five years old, only a year older than the youngest child, when she was removed from her parent’s custody. Middle child has been out of her parents’ custody for two years and four months. Again, this represents about one third of her life. Middle child exhibits various behavior problems, and has been diagnosed with post-traumatic stress disorder and reactive attachment disorder. She was having difficulty in school, but this improved in her aunt’s care. She liked living with her aunt and felt that she received good care there. Although she was happy to see her parents during visits, cried when visits ended, and spoke with her parents frequently on the phone, her behavioral problems were exacerbated by telephone calls with her mother. On this record, the parents did not meet their burden to establish that terminating parental rights would greatly harm middle child by depriving her of a substantial, positive emotional attachment.
Oldest child presents a closer question. Oldest child is quite a bit older than her siblings. She was 10 years old when she was removed from parents’ custody. The two years and four months she has been out of their custody represents a much smaller portion of her life. Nonetheless, oldest child had learning disabilities and special education needs that were being addressed by her aunt. Oldest child also had significant emotional difficulties related to both the trauma of witnessing domestic violence and the loss of her parents. Although oldest child clearly had a significant emotional attachment to her parents, called them multiple times every day, was upset when visits ended, and repeatedly insisted she wanted continued and increased contact with her parents, she also expressed distrust of her mother and uncertainty of her father. She was tearful and anxious after one visit, fearing her father might harm himself. She repeatedly expressed concern about her parents’ alcohol use. During visits she recognized the signs that they had been imbibing. The social worker posited that oldest child’s behavioral regression was due to the increased contact between oldest child and the parents. In addition, oldest child’s therapist believed the increased contact with parents was emotionally disruptive to oldest child. On this record, parents did not meet their burden of establishing that terminating their parental rights would deprive oldest child of a “substantial, positive emotional attachment such that [oldest child] would be greatly harmed.” (See In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
DISPOSITION
The judgment of the juvenile court is affirmed.
We concur: NICHOLSON, Acting P. J., BUTZ, J.