IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR
December 14, 2010
IN RE GARY S., A PERSON COMING UNDER THE JUVENILE COURT LAW. MENDOCINO COUNTY HEALTH AND HUMAN SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
MICHAEL S., DEFENDANT AND APPELLANT.
(Mendocino County Super. Ct. No. SCUK-JVSQ-08-15250)
The opinion of the court was delivered by: Ruvolo, P. J.
In re Gary S. CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 this juvenile dependency case, three siblings and their older half-sibling were all removed from the custody of their parents. Reunification efforts failed, and the juvenile court entered an order terminating parental rights. The father, Michael S. (father), appeals as to the oldest full sibling only, arguing there was not clear and convincing evidence that this particular child, Gary S. (Gary), was adoptable. We disagree, and affirm the juvenile court's order.
facts and procedural background
The sole issue on this appeal is whether there was clear and convincing evidence of Gary's adoptability as of the date father's parental rights were terminated. We will therefore recite only briefly the facts regarding the original removal of Gary and his siblings from their parents' home, and the unsuccessful reunification process that ensued.
The family first came to the attention of the Mendocino County juvenile court after respondent Mendocino County Health and Human Services Agency (the Agency) detained the older half-sibling in January 2008, based on reports that father (the half-sibling's stepfather) was inflicting abusive discipline and physical violence on him. The Agency's petition alleged that Gary, then age three, and his two younger full siblings (a brother, age two, and an infant sister) were also at risk of being abused or neglected. Gary and his younger siblings were not removed from the home along with their half-sibling, but they were placed on family maintenance.
In October 2008, the siblings' mother (mother)*fn1 reported to the Agency that father was abusing her, and that the children had observed incidents of domestic violence. The Agency removed Gary and his brother (the boys) from the home, but left their infant sister with mother. The juvenile court granted the Agency's section 387*fn2 petition and detained the boys. The following month, the Agency filed a supplemental amended section 387 petition, based in part on reports by the boys' foster parents regarding their aberrant behavior, which appeared to indicate that they were suffering from serious emotional damage. During the remainder of 2008, Gary's behavior, in particular, continued to be troublesome. He acted out sexually both with his younger brother and with his foster mother; used profanity; was aggressive with his peers at preschool; and tried to choke himself twice. His brother had to be moved to a separate foster home because of Gary's inappropriate behavior and aggression toward him. Gary's behavior worsened after visits with his parents.
Gary and his family received reunification services from late 2008 through January 2010. During that time, Gary was moved to two different foster homes, and his behavior problems continued. By January 2010, however, his episodes of acting out had decreased in duration and severity, and according to his therapist, he was doing well in his placement.
As of early August 2009, both parents had tested positive for controlled substances, and father had been arrested for domestic violence. The boys both seemed to regress after visitation with their parents, so visitation was reduced to one hour per week of monitored visitation. Father was incarcerated for domestic violence for four months starting in early September 2009, and during that time, participated in visitation only by telephone. Gary's behavior improved during this time.
On January 28, 2010, the juvenile court terminated reunification services and set a section 366.26 hearing for May 26, 2010. In the interim, father was released from custody and resumed monthly visitation. Meanwhile, the Agency arranged for a court-ordered bonding study and an adoption assessment as to Gary and his two full siblings. The bonding study concluded that continued contact with father was disruptive to the sense of safety and security that the children needed, and that there would be no detriment to any of the children in terminating parental rights. It recommended adoption as the best permanent plan for all of the children.
The adoption assessment indicated that the respective caretakers of each of Gary's siblings were willing to adopt them. As to Gary, however, the situation was more complex. Gary was on track developmentally, and did well academically. He was generally in good health, with the exception of some recent seizure-like episodes. An electroencephalography had revealed no abnormalities, and he had been referred for a full pediatric neurological evaluation, which had not yet occurred. He had been through four or five placements, and although he had been in his current foster home since August 2009, the adoption study indicated that his foster parents did not want to adopt him due to his behavioral problems.*fn3
Gary was receiving services from behavioral and rehabilitation specialists as well as a therapist. The behavioral specialist reported that he responded well to clear direction, and to requests or statements that were not disapproving. His treatment team agreed that he had "made consistent and excellent progress," and believed that his behavior would continue to improve, particularly if he were given clear expectations and structure. His therapist opined that Gary understood the concept of adoption to some extent, and wanted to be part of a family. She believed he could "make a successful transition to an adoptive family" within six months. The adoption specialist recommended that any transition to a different placement should occur slowly, but did not believe that a change of placement would be detrimental if carried out properly. The adoption specialist concluded that although "a specific family suitable for [Gary's] adoption" had not yet been identified, she was "confident that a suitable family will be found if additional efforts are made to locate such a family," and believed it was "likely [Gary] will be adopted when a suitable family is identified." Meanwhile, Gary's current foster parents were willing to provide him with a home as long as necessary, and to cooperate in an appropriate transition plan if and when he was moved.
The report that the Agency prepared for the section 366.26 hearing in May 2010 indicated that Gary's behavioral problems still increased after he visited with his father or brother. After spending time with father, Gary acted out sexually and behaviorally, and explained to his foster mother that he was afraid he would have to go back to father, who would hurt him again. His foster mother recommended that visitation and parental rights be terminated.
The Agency also reported that Gary's "attachment issues" had resulted in behavior toward his foster mother that was very stressful for her. She had been provided with respite care and other services to assist her in dealing with him. Gary also had behavioral problems at school, and had threatened and attacked teachers at his after-school program, and thrown chairs at other children there. On the other hand, he had started to make friends, was doing well academically, enjoyed athletic activities, and was often happy and pleasant to be around. His therapist reported that he was making great progress, and opined that his issues with his biological relatives were a "large causal factor in his ongoing anxiety states." He was bonded with his foster father, however, and appeared to be making good progress overall. According to the Agency, the foster parents were "in the process of assessing their ability to care for Gary in the long-term [sic], given his ongoing challenges."
At the section 366.26 hearing, the adoption specialist corrected the statement in her assessment, explaining that although Gary's current foster family was "not ready to come forward with a commitment to adoption," they had not told her that they were not willing to adopt him, and they were willing to keep him in their care. They were dealing with some "outside stressors in their family," and the specialist was encouraging them to take their time in considering the adoption. In the meantime, they were treating Gary as very much a part of their family.
In general, the specialist considered Gary "[a]bsolutely, without a doubt" an adoptable child, despite his behavioral problems. These problems had consistently been exacerbated by visits with his biological family members, and were likely to improve if visits were terminated. He was starting to trust his foster parents, and although he still "need[ed] some assistance," and it would take time for him to "expand his ability to trust and to attach," he did "have the ability to attach in a healthy manner," which the adoption specialist viewed as "key" to his adoptability.
Father testified at the section 366.26 hearing that he wanted to continue visiting with the children, and requested that they be placed with his uncle and aunt, who were willing to provide a permanent placement for Gary and his siblings. Both the adoption specialist and a social worker for the Agency had been in touch with these relatives, and their home had been preliminarily approved as a potential placement. The adoption specialist and the social worker did not believe, however, that Gary should be removed from the home of his current foster parents at that time. The children's counsel concurred in this recommendation.
At the conclusion of the section 366.26 hearing, the juvenile court found by clear and convincing evidence that all of the children were adoptable; terminated both parents' parental rights; and selected adoption as the children's permanent plan. Father filed a timely notice of appeal.
As already noted, father's appeal challenges the termination of his parental rights only as to Gary, and only on the ground that the juvenile court's finding of adoptability is not supported by sufficient evidence. Both the evidentiary standard that applies to this issue in the juvenile court, and our standard of review on appeal, are well settled. At a section 366.26 hearing, the court must determine by clear and convincing evidence whether it is likely the minor will be adopted. (§ 366.26, subd. (c)(1).) If the court finds a likelihood of adoption, the court must terminate parental rights, in the absence of statutory exceptions that father does not argue are applicable here. (In re Celine R. (2003) 31 Cal.4th 45, 53 [if evidence at section 366.26 hearing shows child is likely to be adopted, juvenile court "must order adoption and its necessary consequence, termination of parental rights, unless one of the [statutorily] specified circumstances provides a compelling reason for finding that termination of parental rights would be detrimental to the child."]; In re A.A. (2008) 167 Cal.App.4th 1292, 1320.)
"Although a finding of adoptability must be supported by clear and convincing evidence, it is nevertheless a low threshold: The court must merely determine that it is 'likely' that the child will be adopted within a reasonable time. [Citations.] We review that finding only to determine whether there is evidence, contested or uncontested, from which a reasonable court could reach that conclusion. It is irrelevant that there may be evidence which would support a contrary conclusion. [Citation.]" (In re K.B. (2009) 173 Cal.App.4th 1275, 1292.) Moreover, we review the record in the light most favorable to the juvenile court's findings, and draw all inferences from the evidence that support the court's determination. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1177.)
"The adoptability issue at a section 366.26 hearing focuses on the dependent child, e.g., whether his or her age, physical condition, and emotional state make it difficult to find a person willing to adopt. [Citation.]" (In re A.A., supra, 167 Cal.App.4th at p. 1311.) The case law recognizes that the juvenile court may properly consider a prospective adoptive parent's willingness to adopt as evidence that the child is likely to be adopted within a reasonable time. (Id. at p. 1313.) However, there is no requirement that a particular adoption placement must have been identified in order for a child to be found adoptable. "The likelihood of adoptability may be satisfied by a showing that a child is generally adoptable, that is, independent of whether there is a prospective adoptive family ' " 'waiting in the wings.' " ' [Citation.]" (Ibid., italics omitted & added.) In other words, the willingness of a particular parent or couple to adopt the child may be a sufficient basis for a finding of adoptability, but it is not a necessary one. Thus, as father acknowledges, the unwillingness of Gary's foster parents to commit to adopting him, at least as of the time of the section 366.26 hearing, did not preclude the juvenile court from finding by clear and convincing evidence that Gary was adoptable.
In support of his argument that the evidence of Gary's adoptability was insufficient, father relies primarily on In re Asia L. (2003) 107 Cal.App.4th 498. That case involved three siblings, all of whom were hyperactive (one extremely so), and had other problems that caused the professional who did the adoption assessment to request additional time to evaluate the two oldest children's adoptability. Ultimately, the professional concluded that these children were " 'adoptable but . . . in need of specialized placements.' " The opinion does not indicate that the children's behavioral problems had improved significantly since their removal from their parents. No appropriate placement had been found yet for either child, and while their " 'foster parents ha[d] indicated that they [we]re willing to explore adoption of the children,' " the children had only been with the foster parents for two months, and they reportedly considered it " 'too soon for them to make such a permanent and life changing decision.' " (Id. at p. 511.) Moreover, the social services agency in the case "failed to provide evidence of approved families willing to adopt children with the developmental problems" suffered by the two children in question. The third child was not only hyperactive, but also had tested positive for drug exposure at birth, and suffered from asthma, though he was otherwise healthy. (Id. at p. 512.) Division Three of this court concluded that under those circumstances, there was not sufficient evidence of adoptability to meet the clear and convincing standard and justify terminating the parents' parental rights. Moreover, in selecting adoption as the children's permanent plan, the juvenile court had not considered either the children's wishes or the desirability of maintaining their sibling bond. (See id. at pp. 512-515 & fn. 6.)
In the present case, in contrast, Gary's behavioral problems consistently improved when he was not in contact with his biological family members, and he was expected to continue to make progress in this regard. There is no evidence that Gary required a "specialized placement" as did the two older children in In re Asia L., supra, 107 Cal.App.4th 498. In Gary's case, there also was no need to find an adoptive family willing to adopt his siblings or maintain visitation with them, since the bonding study had concluded that Gary's bond with his brother was negative, and his bond with his sister was extremely weak. Moreover, unlike the recently placed older children in In re Asia L., Gary had been with the same foster family for about eight months at the time of the section 366.26 hearing. They were willing to continue caring for him as long as necessary, and possibly to adopt him. If they did not do so, father's uncle and aunt had been identified as an alternative possible adoptive placement. In short, except for Gary's behavioral problems and the absence of a firm commitment to adoption on the part of his foster parents, none of the difficulties that led the Asia L. court to find insufficient evidence of adoptability is present in this case.
Father also cites In re Valerie W. (2008) 162 Cal.App.4th 1, 14 for the proposition that the juvenile court should not have found Gary adoptable before the results of his neurological evaluation were obtained. In In re Valerie W., two siblings were being cared for as foster children by a woman and the woman's adult daughter, and the caregivers wished to adopt the children as joint parents. The older child had behavioral problems, and the younger one had numerous identified medical problems, including anemia, abnormally short stature, a small lower jaw and overbite, delayed speech development, gastrointestinal problems, and seizures. (Id. at pp. 5-6.) The cause of the anemia had not yet been identified. An electroencephalograph had not revealed any abnormalities in the child's brain, but further testing was needed. Genetic testing and follow-up investigation regarding the child's growth problems had been recommended, but were not discussed in the social services agency's adoption assessment report.
The court concluded that the adoption assessment report did not meet the statutory requirements for such documents in numerous respects. The failure to discuss the younger child's medical situation adequately was only one of these deficiencies. (See In re Valerie W., supra, 162 Cal.App.4th at pp. 13-14.) The court noted that "Where, as here, the record suggests the child has been or will be tested for a serious genetic or neurological disorder, a lack of evidence concerning the child's condition, prognosis and treatment needs, if any, undermines the basis for the determination that a prospective adoptive parent is capable of meeting that child's needs." (Id. at p. 14.)
However, in considering whether the deficiencies in the report "were sufficiently egregious to undermine the basis of the [juvenile] court's decision to select adoption as the children's preferred permanent plan and to terminate parental rights" (In re Valerie W., supra, 162 Cal.App.4th at p. 14), the court's primary concern was the assessment's failure to address adequately the circumstance that the mother and daughter caregivers proposed to adopt the children jointly. Despite this unusual situation, the report contained no discussion of the daughter's suitability as an adoptive parent, or of the legal issues involved in adoption by two persons who were not in a marital or domestic partnership type of relationship. (See id. at pp. 15-16.)
Here, in contrast, father has not identified any asserted deficiency in the adoption assessment beyond the absence of any report on the neurological tests that Gary was scheduled to undergo. Father cites no authority for the proposition that this factor alone renders the adoption assessment so deficient as to vitiate the juvenile court's adoptability finding. Moreover, Gary's seizure-like symptoms were not nearly as severe as the multiple medical problems of the younger child in In re Valerie W., supra, 162 Cal.App.4th 1.
On the other hand, the evidence supporting the juvenile court's finding of Gary's adoptability is considerable. Gary's behavioral problems had improved since father's visitation was curtailed, and it is clear from the record that placing Gary in a permanent home was likely to result in even more improvement. Gary did well in school academically, enjoyed athletic activity, and was capable of forming positive attachments to adults. Contrary to the portrayal of the situation in father's briefs, our review of the record makes clear that Gary's foster parents remained open to the idea of adopting him, although they had not yet committed to do so. Moreover, the willingness of father's uncle and aunt to adopt Gary showed that he was likely to be adopted even if the foster parents decided not to do so. The adoptions specialist concluded without reservation that Gary was adoptable. These facts, under the applicable standard of review, constitute substantial evidence sufficient to support the juvenile court's finding that the Agency presented clear and convincing evidence of Gary's adoptability.
The juvenile court's order terminating parental rights is affirmed.
We concur: REARDON, J. SEPULVEDA, J.