IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
May 11, 2011
IN RE A.B. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
Y.B., DEFENDANT AND APPELLANT.
(Super. Ct. Nos. JD229641, JD230391)
The opinion of the court was delivered by: Raye , P. J.
In re A.B.
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Appellant Y.B., the mother of the minors A.B. and M.B., appeals from the juvenile court's orders terminating her parental rights. (Welf. & Inst. Code, § § 366.26, 395.)*fn1 Appellant claims there was insufficient evidence to support the juvenile court's finding that A.B. was adoptable. We shall dismiss the appeal as to M.B. and affirm as to A.B.
In April 2009 A.B. and her siblings D.B., As.B., and S.S. (As.B, D.B., and S.S. are not parties to the appeal) were placed in protective custody after one-year-old D.B. sustained life-threatening head injuries and numerous lacerations over his body consistent with child abuse. Appellant told the police she did not know how the injuries occurred, and thought they may have been an allergic reaction. The Sacramento County Department of Health and Human Services (DHHS) filed a dependency petition, alleging jurisdiction over the children pursuant to section 300.
Appellant later said D.B. suffered a thigh injury falling on a glass table and a head injury after falling down cement stairs. Later, she admitted disciplining the infant by whipping him with a belt on his inner thighs and armpits until he bled and using her fingernails after the belt broke. She told police she waited until the following morning to bring D.B. to the hospital after he sustained the head injuries. The medical director of the U.C. Davis child abuse treatment center told police D.B.'s head injuries could have killed him, and he should have been brought to the hospital immediately.
Appellant was arrested in May 2009. She was later convicted of willfully inflicting upon a child cruel or inhuman corporal punishment resulting in a traumatic condition (Pen. Code, § 273d, subd. (a)) and sentenced to state prison.
The jurisdiction/disposition report described A.B. as severely autistic, non-verbal, and unable to follow any instructions. A.B. was unable to provide any level of care for herself and needed physical and verbal prompts to complete tasks like toileting. Her significant sensory needs were being addressed with the help of occupational therapy, and she was taking medication for seizures. The foster mother reported A.B. was doing well in the home and she had no concerns about her.
In October 2009 the juvenile court sustained the petition and denied reunification services pursuant to section 361.5, subdivisions (b)(5) and (b)(7).
M.B. was born in December 2009 while appellant was in state prison. DHHS filed a section 300 petition, which the juvenile court sustained in March 2010. Services were denied in June 2010.
The section 366.26 report related A.B. was diagnosed with generalized tonic-clonic seizures, autism, and behavioral problems. Her medications were increased after an abnormal EEG. She was unable to dress herself and could not participate in daily hygiene without assistance. She was a level four client at the Alta California Regional Center.
A.B.'s foster parent was not interested in adoption but was willing to provide long-term foster care and assist the transition to a permanent placement. In January 2010 DHHS contacted appellant's cousin T.H. T.H. lived in Georgia and wanted to care for all of the children. She had contacted a licensed facility for A.B., and was aware A.B. needed specific assistance. T.H. last saw the children when she visited Sacramento in February 2009. The children would visit T.H. every weekend when appellant lived in Atlanta.
According to the social worker, T.H. appeared to be appropriate and maintained contact with DHHS in an effort to have the children placed with her. DHHS was awaiting approval for T.H. pursuant to the Interstate Compact for the Placement of Children (ICPC) (Fam. Code, § 7900 et seq.).
A March 2010 addendum to the section 366.26 report concluded A.B. was not adoptable because she was autistic, non-verbal, suffered from seizures, and the foster parents were unwilling to adopt her. The report also noted appellant's intent to be paroled to Georgia, and placing her children with T.H. could be detrimental to their mental and emotional health. Although T.H. said she was aware of appellant's mental incapacity, the social worker concluded appellant's mental health condition may make it difficult for T.H. to protect the children.
A second addendum report, filed in May 2010, indicated DHHS obtained approval from the ICPC to place A.B. and her siblings with T.H. DHHS continued to have reservations about placing the children with T.H. because appellant intended to move to Georgia and maintain contact with her children. T.H. told DHHS she is capable of protecting the children from appellant and has the support of extended family members. She also told DHHS that she will keep A.B. in her home and enroll her in a day school program similar to the one she currently attended. DHHS concluded A.B. was now specifically adoptable.
A relative called DHHS to express concern about placing the children with T.H. The relative said T.H. did not help appellant with the children when they lived in Georgia, and T.H. lived with her mother, who did not want the children in her home. The relative also said T.H. had an 18-year-old daughter whom she had "barely raised." However, another relative told DHHS that she and other family members were willing to help T.H. raise the children.
A third addendum report, filed in July 2010, stated the paternal grandmother of As.B. and S.S. was approved for the placement with As.B., S.S., and D.B. DHHS was making arrangements for A.B. to visit T.H. in Georgia.
At the July 2010 section 366.26 hearing, the juvenile court was informed A.B. and M.B. were not yet placed with T.H. because she received anonymous threats regarding the placement. A.B.'s section 366.26 hearing was continued to September 2010, the same day as M.B.'s section 366.26 hearing. The juvenile court also terminated parental rights as to As.B., D.B., and S.S., who were placed with the paternal grandmother.
The September 2010 section 366.26 report on M.B. indicated she was developmentally on track, a happy baby, and made an excellent adjustment to placement with T.H. in August 2010. T.H. lived with her mother and her adult daughter in her mother's four-bedroom home. The home was in a family oriented neighborhood near educational and medical facilities, along with shopping and entertainment. She was employed in customer service and was interested in adopting M.B. T.H. had no criminal or child welfare history. DHHS concluded M.B. was generally adoptable and recommended terminating parental rights.
T.H.'s relationship with appellant changed after she told appellant she would not return the children to her care after their adoptions. T.H. was willing to allow appellant to contact the children after adoption if she is appropriate and travels to Georgia. She was unwilling to travel to California after the death threat.
The fourth addendum report to A.B.'s case, filed September 2010, related an abortive attempt to have A.B. fly to Georgia to meet T.H. A.B. was taken to the airport where she was to board the plane with a family service worker. Before boarding, A.B. threw herself on the floor, cried, ran all over the airport, and threw her shoes. She did not relax until the family service worker and three Sheriff's deputies took her to a quiet area. The airline told DHHS that A.B. would not be able to board an airplane in the future if she behaved in this manner.
A.B. successfully flew to Georgia three days later, after T.H. flew to Sacramento, met A.B. at the airport, and accompanied A.B. on the flight. This time the family service worker met A.B. at the foster home two hours before leaving so A.B. would be familiar with her. The family service worker and the foster parent took A.B. to the airport where she met T.H., who stayed with her for an hour before they boarded the plane without incident. The flight was uneventful, and there were no further disturbances.
T.H. reported A.B. adjusted well to her placement. She enrolled A.B. in the local school district where she was placed in special education classes. T.H. reported A.B. was ineligible for Medicaid because the ICPC paperwork had not been forwarded to her county. A.B. was almost out of her seizure medication, and the emergency room would not provide it unless T.H. paid for it herself. DHHS was able to get the ICPC paperwork sent to T.H.'s county and promised to reimburse T.H. for A.B.'s medical expenses.
DHHS noted T.H. was proactive in addressing A.B.'s needs. T.H. maintained A.B. was a joy to have around and was doing very well. She reiterated her desire to adopt A.B.
At the September 2010 section 366.26 hearing, the minors' counsel said T.H. wanted it put in the record she was having trouble getting medical and financial assistance for the children. Appellant's counsel objected to termination of parental rights, and expressed appellant's frustration at never being offered services.
The juvenile court found M.B. was generally adoptable, A.B. was specifically adoptable, and terminated parental rights.
Appellant contends there is insufficient evidence to support a finding that A.B. was likely to be adopted. We disagree.
"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." ( § 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.) In this case, A.B.'s medical and mental health problems meant that she was, as the social worker assessed, specifically rather than generally adoptable. In such cases, to find the minor is likely to be adopted, there must be a prospective adoptive parent who is presently willing to adopt. (Id. at p. 1650.) When a child is specifically adoptable, inquiry into the existence of a legal impediment to adoption by the prospective adoptive parents may be relevant at the section 366.26 hearing. (Ibid.; Fam. Code, § 8600 et seq.) In the case of a child who will need specialized care for an extended period of time, it may also be appropriate for the juvenile court to inquire whether the prospective adoptive parent can meet the child's ongoing needs. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1062.)
We review an order terminating parental rights for substantial evidence. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) "On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. [Citations.]" (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)
Appellant states the social worker had "significant concerns" about T.H.'s ability to care for A.B. as recently as March 2010. At that time, appellant wanted all her children to be placed in Georgia rather than Sacramento. She intended to reside in the same city as her children, which, according to the social worker, "may affect their ability to recover from the child abuse they experienced." The social worker observed that DHHS did not have access to the Child Protective Services (CPS) records from the years appellant lived with her children in Georgia. According to the social worker, while T.H. "expressed that she will protect the children from the mother as she is aware of the mother's mental incapacity, the mother's mental health condition may make this difficult."
When the social worker wrote the report cited by appellant, DHHS considered placing all of appellant's children with T.H. Since T.H. resided outside of DHHS' jurisdiction, and DHHS could not access CPS records for the time appellant lived there, the social worker was concerned about the ability of T.H. or anyone to protect the children from appellant.
The juvenile court could reasonably conclude this was not an impediment to A.B.'s adoptability. Appellant's children were separated by the time of the termination hearing, with As.B., S.S., and D.B. living with the paternal grandmother in Sacramento while A.B. and M.B. were in Georgia with T.H. T.H. told appellant she would not return the children to her after adoption. She is not alone in this, as extended family members are willing to help her. The social worker's problems were with appellant, not T.H. Appellant's desire to contact the minors after parental rights were terminated is not a valid reason to dispute A.B.'s adoptability.
Appellant correctly points out that T.H. originally intended to institutionalize A.B. However, T.H. later said she would keep the child home and enroll her in school, a promise she later kept. Appellant's argument that T.H. might change her mind is speculative.
Appellant also claims the juvenile court should have considered legal impediments to adoption. She did not raise this issue at the section 366.26 hearing, which forfeits it on appeal. (In re G.M. (2010) 181 Cal.App.4th 552, 563-564.)
T.H. successfully completed the ICPC assessment. Unlike the family services worker, she was able to get A.B. onto the airplane and fly home without incident. Although A.B. lived with T.H. for just a month before the termination hearing, they were not strangers as appellant's children regularly visited T.H. when appellant lived in Georgia.
T.H. was intimately aware of A.B.'s special needs. She showed a commitment to the child by flying to Sacramento on short notice, and took the initiative to secure medicine and funding for her in Georgia. A.B.'s placement in her home went smoothly, and T.H. found her a joy to have around the house. While A.B., a 14-year-old with severe autism and seizures, is not generally adoptable, she has the good fortune to have T.H., a relative who desires and is able to care for her. Substantial evidence supports the juvenile court's finding that A.B. was adoptable.
The notice of appeal included both A.B. and M.B. Appellant does not raise any issues as to M.B. Accordingly, we shall dismiss the appeal as to M.B.
The juvenile court's orders are affirmed as to A.B. The appeal is dismissed as to M.B.