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In Re Gary S., A Person Coming Under the Juvenile Court Law. v. Michael S

December 14, 2010


(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


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ...

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