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In re Darin B.

California Court of Appeals, Third District, Sacramento
Aug 27, 2008
No. C057365 (Cal. Ct. App. Aug. 27, 2008)

Opinion


In re DARIN B. et al., Persons Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. DEANNA R. et al., Defendants and Appellants. C057365 California Court of Appeal, Third District, Sacramento August 27, 2008

NOT TO BE PUBLISHED

Super. Ct. Nos. JD223387, JD223388

ROBIE, J.

Deanna R. and Andrew B., parents of the minors, appeal from orders terminating their parental rights. (Welf. & Inst. Code, §§ 366.26, 395.) Appellants challenge the juvenile court’s findings that the minors were likely to be adopted and the orders terminating parental rights on several grounds and argue the court erred in failing to place the minors with the paternal grandmother. We affirm.

All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

FACTS

The minors, Andrew, four, and Darin, three, were detained in San Francisco County in July 2005 following their parents’ arrests. The minors had witnessed domestic violence and were very aggressive in play. The minors did not want to be placed with the paternal grandmother because she hit them with a stick. The minors were placed with an adult half-sister who saw marks from being hit on Andrew when she picked up the minors from the paternal grandmother’s home. The case was transferred to Sacramento County following a disposition hearing at which reunification services were ordered.

The minors liked living with their sister but continued to show some aggression at school and were referred to therapy. However, the sister did not like the therapist and did not take the minors for counseling. The court terminated services because both parents were serving lengthy federal prison sentences and set a section 366.26 hearing.

The July 2006 report for the section 366.26 hearing stated the minors were healthy with no developmental delays but both had behavioral problems of aggression which needed to be addressed in therapy. The minor’s sister wanted to adopt the minors, however the social worker had concerns about domestic violence in her home. The sister had her own very young child and both minors were coming to school with injuries. The minors were assessed as not generally adoptable at that time due to behavioral issues which would make them difficult to place without treatment. The hearing was continued because the social worker needed more time to assess the sister as a guardianship placement for the minors. In November 2006, the court ordered that the paternal grandmother be reassessed for placement of the minors.

An addendum report filed in January 2007 did not recommend placement of the minors with the paternal grandmother because she did not have room for them and was not interested in placement unless they were not doing well in their sister’s home. The social worker was no longer recommending guardianship with the sister because she left the minors with her boyfriend, who had not been approved to care for them, and had presented an overly optimistic account of the minors’ attendance and performance in school and of their ongoing behavioral problems. The social worker received a report that the minors may have suffered physical abuse in the sister’s care. The section 366.26 hearing was continued for investigation of this claim of possible abuse. At the next hearing, the juvenile court adopted a permanent plan of long-term foster care with a goal of adoption.

In February 2007, the minors were removed from the sister’s home as a result of infliction of physical abuse which caused injuries to the minors. The minors, now five and six years old, were placed together in a foster home. The juvenile court set a second section 366.26 hearing.

In an addendum report of June 2007, the social worker again assessed the paternal grandmother for placement and again rejected her. At the conclusion of the placement hearing, the court denied the paternal grandmother’s request for placement without prejudice pursuant to section 361.3. The court ordered the Department of Health and Human Services (the department) to provide services to the paternal grandmother, including counseling, to assist her in overcoming the current barriers to a successful homestudy.

The statute provides for preferential consideration of relatives when placement changes must be made. The parties lack standing to assert the issue.

The department requested permission to photograph and videotape the minors to increase their exposure to potential adoptive families. The court granted the request.

In August 2007, the department filed a report for the section 366.26 hearing. The report stated that the minors were healthy, developmentally on track and currently having no behavioral problems at school, although Andrew had one violent incident, which was dealt with promptly. Andrew’s therapist diagnosed him as suffering from post traumatic stress disorder (PTSD) and was of the opinion that he would need long-term therapy. The minors had not had contact with their sister since March 2007 and none at all with their brother since the beginning of 2007. Their significant relationships were with the foster mother and the paternal grandmother. Homefinding was continuing since the foster mother was willing only to be the minors’ guardian. The photographs and videotaping had led to several calls about the minors and two families were good candidates. After a delay to secure financing, therapy had been approved for the paternal grandmother. The paternal grandmother’s therapist found reason to be concerned about the paternal grandmother’s belief system regarding abuse but they were working on it in therapy sessions. In the social worker’s opinion, the minors should not be placed with the paternal grandmother but should have continued contact with her. The report stated that the minors were young, healthy children without learning or developmental delays but had been identified as hard to place due to their family background.

An addendum report filed in October 2007 provided an update on homefinding. The minors remained in their foster placement and were doing well with the limits and structure provided there. A family had been identified as a possible placement but an exemption was required as the father had a prior criminal conviction. The social worker did not believe securing the exemption would be a problem. The paternal grandmother was continuing therapy but had visited the minors only once in the last two months.

At the contested hearing, both minors testified that they liked the paternal grandmother and would like to live with her. The minors’ father testified he wanted the minors to live with the paternal grandmother.

The social worker testified the minors had been in their current foster placement for five months and felt safe there but adoption by the foster parent was not an option. The social worker further testified the minors no longer displayed their previous defiant behavior and there had been only the one violent incident at school involving Andrew which was promptly addressed by the foster mother, the minor’s counselor, and the school. The social worker noted that the minors were ambivalent when asked to identify people they wanted to live with. The department had not yet identified an adoptive placement and had not yet disclosed the minors’ behavioral history and Andrew’s PTSD to the family under consideration. The paternal grandmother had attended counseling sessions, moved to a larger home and was provided liberal visitation, which she did not fully exercise, but, the issues which originally militated against placement remained, including the fact that the minors had been removed from her care for physical abuse. The social worker testified that the minors were considered hard to place, i.e., “CAP kids,” at the time they were transferred from San Francisco County to Sacramento County. However, she believed the minors were generally adoptable even with Andrew’s diagnosis of PTSD and did not believe the county would allow them to be adopted separately.

The juvenile court found, based on all the evidence, including age, development, and observation of the minors in court, that there was clear and convincing evidence the minors were likely to be adopted. The juvenile court terminated parental rights, freeing the minors for adoption.

DISCUSSION

I

Sufficiency Of The Initial Petition

Appellant Deanna R., relying on In re Alysha S. (1996) 51 Cal.App.4th 393, argues she can raise the sufficiency of the initial petition in this appeal from termination of parental rights. We disagree.

In Alysha S., this court, relying on our earlier decision in In re Fred J. (1979) 89 Cal.App.3d 168, 176 and footnote 4, observed that a challenge “akin” to a demurrer was available in a dependency action to test the sufficiency of the allegations in the petition. (In re Alysha S., supra, 51 Cal.App.4th at p. 397.) We then, drawing an analogy to the civil law in which a claim that a pleading failed to state a cause of action is not waived by failing to assert it in the trial court, concluded that such a claim relating to the sufficiency of the petition to state a basis for a dependency proceeding was also not waived on appeal even if not previously raised. (Ibid.)

Orders sustaining or overruling a demurrer are not appealable and must be reviewed on appeal from the final judgment. (Casterson v. Superior Court (2002) 101 Cal.App.4th 177, 182; Lucas v. Santa Maria Public Airport Dist. (1995) 39 Cal.App.4th 1017, 1022.) In dependency cases, the disposition constitutes the judgment. (In re Tracy Z. (1987) 195 Cal.App.3d 107, 112.) Completing the analogy to civil law, claims relating to the sufficiency of the petition must be raised in an appeal from the judgment, i.e., disposition of the petition. No appeal was taken from the judgment of disposition and the challenge to the pleading has been forfeited. (In re Daniel K. (1998) 61 Cal.App.4th 661, 667; John F. v. Superior Court (1996) 43 Cal.App.4th 400, 404-405; In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.)

II

The Finding The Minors “Were Likely To Be Adopted”

Appellants contend substantial evidence did not support the juvenile court’s finding that the minors were likely to be adopted because they had been continuously labeled “CAP,” i.e., difficult to place, children, thus, the court erred in terminating parental rights.

“If the court determines, based on the assessment . . . and any other relevant evidence, by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. The fact that the child is not yet placed in a preadoptive home nor with a relative or foster family who is prepared to adopt the child, shall not constitute a basis for the court to conclude that it is not likely the child will be adopted.” (§ 366.26, subd. (c)(1).)

Determination of whether a child is likely to be adopted focuses first upon the characteristics of the child. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) The existence or suitability of the prospective adoptive family, if any, is not relevant to this issue. (Ibid., In re Scott M. (1993) 13 Cal.App.4th 839, 844.) However, “[t]here must be convincing evidence of the likelihood that adoption will take place within a reasonable time.” (In re Brian P. (2002) 99 Cal.App.4th 616, 625.)

The minors were designated as difficult to place when they were in San Francisco County due to their aggressive behaviors resulting from being raised in an atmosphere of domestic violence and being subjected to physical abuse. This designation followed them to Sacramento County. However, once removed from the sister’s care, provided therapy, and placed in a structured, safe environment with limits, the aggressive behaviors decreased and by the time of the section 366.26 hearing, apparently had resolved altogether. Andrew was diagnosed with PTSD, however, he was in therapy and appeared to have made tremendous progress in dealing with the issues as evidenced by his improved behavior. Diagnosis of a disorder which is controllable does not automatically prevent a child from being considered generally adoptable.

Aside from the behavioral problems, which were no longer an issue, the minors were both young, healthy, and on track both developmentally and educationally. Each minor was individually generally adoptable and the sibling set of two was not so large as to present a significant bar to adoption. (See, e.g., In re B.D. (2008) 159 Cal.App.4th 1218, 1222, 1227 [sibling set of five].) The social worker, having considered all the minors’ characteristics, was of the opinion that they were generally adoptable. No prospective adoptive family had been located by the time of the hearing, however, the process had been delayed while placement with the paternal grandmother was being considered, including providing her services to assist her in passing a homestudy. By the hearing, the social worker was focusing on at least one interested family and indicated that others had called expressing interest in adopting both boys. The evidence supported the juvenile court’s conclusion that the minors were likely to be adopted within a reasonable time. (In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.)

Appellants argue that the social worker’s reports for the hearing did not comply with statutory guidelines because they had no information on sibling contact and thus had insufficient evidence on the question of likelihood of adoption.

The report filed in August 2007 for the section 366.26 hearing included information on the minors’ contacts with their siblings. Appellants had the opportunity to object if the evidence was inadequate or incorrect and they did not do so. Any deficiencies in the assessment go only to the weight of the evidence. (In re Crystal J. (1993) 12 Cal.App.4th 407, 413.) Failure to object on this purely evidentiary issue has forfeited the challenge on appeal. (In re Christopher B. (1996) 43 Cal.App.4th 551, 558; In re S.B., supra, 32 Cal.4th at p. 1293, fn. 2.)

Appellants also argue the court should have continued the matter because the minors were difficult to place. Section 366.26, subdivision (b)(3) provides that if the court finds termination of parental rights would not be detrimental and the child is adoptable but difficult to place, the juvenile court may “identify adoption as the permanent placement goal and order that efforts be made to locate an appropriate adoptive family for the child within a period not to exceed 180 days.” (See also § 366.26, subd. (c)(3).) “[A] child may only be found to be difficult to place for adoption if there is no identified or available prospective adoptive parent for the child because of the child’s membership in a sibling group, or the presence of a diagnosed medical, physical, or mental handicap or the child is the age of seven years or more.” (§ 366.26, subd. (c)(3).)

Here, although the two minors constituted a sibling group (In re Gabriel G. (2005) 134 Cal.App.4th 1428, 1431-1433), there was no evidence that fact, rather than delay to assess the paternal grandmother, had led to the lack of a prospective adoptive placement. The minors were labeled early in the dependency as difficult to place, not because of their sibling group, but because of their behaviors. These behaviors had subsided and, while Andrew was diagnosed with PTSD, he had improved significantly in foster care. The juvenile court could conclude that the minors were not difficult to place within the meaning of the statute. As such, they did not fall within the provisions of section 366.26, subdivision (b)(3) and the court could not exercise its discretion to delay selection of a permanent plan.

III

The Sibling Exception

Appellant Deanna R. argues that because termination of parental rights endangered the sibling bond, the juvenile court abused its discretion in terminating parental rights. Appellant does not argue that termination of parental rights would detrimentally affect the minors’ bonds to their nondependent siblings, only that termination of parental rights could result in the minors being adopted into separate homes, thereby endangering in dependent minors’ bonds to each other.

The existence of a sibling bond is an important potential exception to consider when determining whether to terminate parental rights and, if a substantial interference with a sibling relationship is possible, the court must weigh whether continuing sibling contact would further the child’s long-term interests more than the benefit of legal permanence through adoption. (§ 366.26, subd. (c)(1)(B)(v).) 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 Cristella C. (1992) 6 Cal.App.4th 1363, 1373; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252; Cal. Rules of Court, rule 5.725(e)(3); Evid. Code, § 500.)

On this record, appellant has not established that the sibling exception applies. The record shows only that the department is seeking a home for both minors and the social worker did not expect that they would be separated. Appellant’s argument is thus based solely upon speculation that a future event which could have negative consequences would occur. The juvenile court’s failure to exercise its discretion based upon a flight of fancy into the realms of speculation was not error and did not result in a miscarriage of justice. (Cal. Const., art. VI, § 13.)

IV

Failure To Place Minors With Grandmother

Appellants argue that the juvenile court abused its discretion in failing to place the minors with the paternal grandmother.

“A parent cannot raise issues on appeal which do not affect his or her own rights.” (In re Devin M. (1997) 58 Cal.App.4th 1538, 1541; see In re Frank L. (2000) 81 Cal.App.4th 700, 703.) Only the concerned relative, not the parent, has standing to challenge denial of a postreunification request for placement. (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1034-1035.)

Appellants invite this court to abrogate the holding of Cesar V. relating to standing. We decline to do so. A parent’s interest is in reunification. (Cesar V. v. Superior Court, supra, 91 Cal.App.4th at p. 1035.) This interest is not implicated in placement decisions after reunification efforts have ceased. We agree with the reasoning and conclusion of Cesar V. Appellants lack standing to challenge the court’s refusal to place the minors with the paternal grandmother.

V

No Cumulative Error

Appellant Deanna R. asserts that cumulative error requires reversal. Because we have found no error, we need not address this contention further.

DISPOSITION

The orders of the juvenile court are affirmed.

We concur: MORRISON, Acting P.J., CANTIL-SAKAUYE, J.


Summaries of

In re Darin B.

California Court of Appeals, Third District, Sacramento
Aug 27, 2008
No. C057365 (Cal. Ct. App. Aug. 27, 2008)
Case details for

In re Darin B.

Case Details

Full title:In re DARIN B. et al., Persons Coming Under the Juvenile Court Law…

Court:California Court of Appeals, Third District, Sacramento

Date published: Aug 27, 2008

Citations

No. C057365 (Cal. Ct. App. Aug. 27, 2008)