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In Re D. R. et al., Persons Coming Under the Juvenile Court v. T. R. et al


May 25, 2011


(Super. Ct. Nos. JD229191, JD229215)

The opinion of the court was delivered by: Robie, J.

In re D.R.



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Appellants T. R., the mother, and D. R., the father of the minors D. R. and S. R., appeal from the Sacramento County Juvenile Court's (juvenile court) order terminating their parental rights. (Welf. & Inst. Code,*fn1 §§ 395, 366.26.) They contend insufficient evidence supports the juvenile court's adoptability finding, the minors were specifically rather than generally adoptable, and the adoption assessment was inadequate. We affirm.


In October 2005, Alameda County Social Services Agency (Alameda County) filed a dependency petition alleging jurisdiction over one-month-old D. R. and her nine-year-old brother A. W.*fn2 The petition alleged the father hit A. W. with a belt, D. R. tested positive for opiates at birth, the mother admitted taking a cocaine and alcohol cocktail, the parents admitted to domestic violence, the father was convicted of a domestic violence offense, he admitted smoking marijuana, and was a registered drug offender. D. R. was released to the mother later that month.

A. W. disclosed that the parents hit him with a belt, showing an old, healed two-inch mark on his chest. The parents would throw shoes, clothes, and other objects at each other, at times while the mother carried the infant D. R. The mother admitted the physical abuse allegation, but minimized the domestic violence. The father said A. W. was a liar and a thief.

The Alameda County Juvenile Court sustained the petitions in December 2005. The children were removed with reunification services for the parents.

The six-month report noted D. R. was unable to sit up and just learning to crawl. The mother made minimal progress with her service plan and the father made none. Services were terminated at the September 2006 six-month review hearing.

Sixteen-month-old D. R. was at an eight-month developmental level as of the January 2007 section 366.26 report. D. R. had delayed gross and fine motor skills and could not sit up without being propped up with pillows.

Alameda County recommended the maternal aunt for placement and possible adoption in April 2007. The minors were placed in her home that month.

D. R.'s former foster mother said he suffered from many developmental delays and required a lot of attention. D. R. had difficulty with speech development, saying few recognizable words and often whining rather than trying to talk.

The mother gave birth to S. R. in July 2007; mother and child both tested positive for cocaine at birth. Alameda County filed a section 300 petition in July 2007, alleging failure to protect and abuse of siblings. The petition was sustained in August 2007, and S. R. was placed with the mother with family maintenance services.

The maternal aunt was appointed guardian for A. W. and D. R. in September 2007. Alameda County filed a supplemental petition (§ 387) in November 2007 seeking termination of the guardianship, alleging the maternal aunt left A. W. and D. R. with the mother and did not return to pick them up, used drugs and alcohol, and wanted to relinquish the minors. The boys were detained and placed in foster care. The guardianship was terminated and reunification services were reinstated for the parents, who had started to work on their case plans.

S. R.'s dependency was joined with A. W. and D. R.'s in January 2008. A. W. and D. R. were returned to the parents' care with family maintenance services in March 2008.

The family moved to Sacramento in April 2008. The January 2009 report recommended continuing services and transferring the case to Sacramento County. The social worker noted the children looked well cared for and the apartment was extremely neat. The mother was getting an evaluation for D. R., who appeared to have autism.

The juvenile court accepted the transfer in February 2009. The Sacramento County Department of Health and Human Services (Sacramento County) reported on the dependency in March 2009. The mother was ordered to drug test in February 2009 but had not yet tested. The father violated parole for failing to complete his mandatory domestic violence classes.

D. R. was physically healthy, could dress himself, and communicate his wants to his parents, although his speech was significantly delayed. He was still being tested for autism and had a referral for Alta California Regional Center (Alta). S. R. was healthy and developmentally on track.

Sacramento County filed a supplemental petition (§ 387) in September 2009 alleging the parents were not participating in counseling or drug testing. The petition further alleged the mother tested positive for marijuana and cocaine and admitted using cocaine, while the father tested positive for cocaine.

D. R. and S. R. were placed in foster care. D. R. had to be moved to another foster home that month because of a complaint from the first foster home.

A September 2009 report indicated S. R. was hitting all of her developmental milestones. D. R. continued to have speech problems and was difficult to understand. The parents did not follow through with the scheduled intake appointment with Alta, so the referral was closed. D. R. was still thought to be possibly autistic. He was referred to Head Start; while the mother said he started attending, the social worker could not verify her claim.

Sacramento County filed another supplemental petition in October 2009, alleging the parents' continued failure to participate in services and detailing their substance abuse.

The October 2009 jurisdiction/disposition report stated D. R. and S. R. were placed together. D. R. adjusted slowly to foster care while S. R. adjusted well. D. R. was very protective of S. R.

The juvenile court terminated services in January 2010 and set a section 366.26 hearing.

The May 2010 selection and implementation report stated S. R. was possibly developmentally delayed, had a speech problem, and was referred to Alta. S. R. had episodes of blank staring and was examined by a neurologist in January 2010. The neurologist felt she displayed some signs of autism but was not having seizures. She was to have a 24-hour EEG if the staring episodes did not improve.

D. R. appeared somewhat developmentally delayed, having difficulty in group settings and needing individual attention to learn. A December 2009 psychological evaluation showed he was below average in all developmental areas except for physical development. The delays did not qualify him for Alta services.

D. R. was described as a very active and friendly boy who appeared to be suffering from the effects of prenatal drug and alcohol exposure as well as a very neglectful early life. He could pick up after himself and do simple chores, but struggled with toileting and had trouble buttoning his pants and zipping zippers. Although he was hyperactive and had difficulty with anxiety and regulating his emotions, D. R. made tremendous progress in the current foster home.

S. R. also presented developmental delays. At 31 months her gross motor, fine motor, and communication skills were at 24 to 30 months, while her self-help skills appeared to be at 13 to 18 months. Her delayed social skills qualified her for once a month consultation with Alta.

The foster parent reported that S. R. was very withdrawn when she first arrived, staring blankly into space at times and bursting into tears at apparently nothing. Those episodes greatly lessened over time, and the social worker observed she was a happy, interactive, and friendly child. However, she would refuse to interact and shut down at times, such as when she is told she cannot touch something. S. R. was making tremendous progress in development in her foster home.

D. R. was assessed at Alta in December 2009. He was reported to talk to S. R. and objects in a different language that only S. R. can understand. When asked a question, he would reply "uh," or repeat the question back. D. R. talked to imaginary friends and tormented his peers by being combative and repeating what they said to him. The examining psychologist concluded D. R. showed no cognitive delay, but was adaptively delayed. The adaptive delays are likely related to mixed expressive-receptive language disorder as well as a difficult childhood with frequent changes in his foster placement.

Since the minors' current caregivers were not interested in adoption, the minors went to an adoption exchange in April 2010. Four home studies were received at the initial presentation and at least two other families expressed interest in adopting S. R. and D. R. Although the minors were not matched with a potential adoptive family, the social worker concluded they were generally adoptable.

Sacramento County reiterated the minors were generally adoptable in an addendum report. S. R. was described as an adorable, friendly, generally physically healthy two-year-old girl. She recently became toilet trained and participated appropriately in the preschool program at her foster home. Although the severe neglect she experienced at the hands of her parents made her appear to be autistic, S. R. made tremendous progress since entering foster care. Initially withdrawn, fearful, and severely delayed, S. R.'s internal resources, coupled with the good care she received, revealed her to be a capable child. The social worker concluded S. R.'s delayed social skills were likely related to the neglect she suffered before foster placement.

D. R. was described as an engaging, friendly, sweet, curious little guy. The neglect he suffered at the hands of his parents left a mark on him, and he had many behavior problems when he entered foster care. D. R. made tremendous progress in the last eight months and turned into a little boy who always had a smile and a winning attitude. His toileting accidents had reduced to once a week and were related to stress or straying from the diet recommended by his pediatrician. D. R.'s mixed-expressive language disorder was typical of children in the foster care system who are prenatally exposed to illicit substances and neglected. The social worker asserted D. R.'s inquisitive mind and willing attitude would allow him to continue making up ground lost in his parents' care.

The report concluded the minors were adoptable as a sibling group since many families were looking for siblings to adopt, especially young ones like S. R. and D. R. The minors genuinely enjoyed each other and had no significant behavioral issues with the other children at their current placement.

Social worker Lisa Wittorff testified at the contested section 366.26 hearing held in August 2010. She had identified five or six potential adoptive placements for the minors. The minors were in the process of being transitioned to a two-parent potential adoptive home. The potential adoptive parents were apprised of the delays for both minors and met the children four times, for a total of 11 hours. They were experienced foster parents who specifically sought special needs children. They had been foster parents to a sibling set of three which included a child a year older than D. R. with similar needs. The potential adoptive parents did not feel overwhelmed by the minors and did not express any reluctance in addressing the challenges they presented. The minors would be placed with this couple shortly.

S. R. no longer presented as autistic and was not diagnosed with autism. She was now very verbal and was developmentally on target in all areas. She would withdraw "and kind of zone out" but it only happens for a couple of minutes every once in awhile. She has tantrums, but nothing untoward for a three year old.

D. R., like his sister, was not socialized when he entered foster care. He had to be taught very basic things about living in a family and had significant learning delays. He did quite well in his former foster home, although he had a difficult transition to his current home, and his behavior deteriorated as a result. Wittorff thought the potential adoptive placement had a better parenting style for D. R. and he would respond positively to placement with them. D. R. would likely need special education for the rest of his educational career.

D. R. and S. R. were presently living with a single parent family in what Sacramento County initially considered a potential adoptive placement. That parent was not specifically looking for children with issues like D. R. and S. R.; she was an inexperienced parent who could not get through the initial adjustment period. The minors were in that home for about two months and visited for about 30 to 40 hours before placement.

Wittorff concluded the minors were not as easy to place as some children, but were not difficult to place.

Counsel for the minors joined the parents in asking for a 180-day continuance pursuant to section 366.26, subdivision (c)(3) rather than immediate termination of parental rights. The juvenile court found the minors were generally adoptable and terminated parental rights.


I Adoptability

The parents contend there is insufficient evidence to support the juvenile court's finding that the minors were generally adoptable. We disagree.

"'At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must make one of four possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the Legislature is adoption.'" (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368, italics omitted.) "In order for the court to select and implement adoption as the permanent plan, it must find, by clear and convincing evidence, the minor will likely be adopted if parental rights are terminated." (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164; § 366.26, subd. (c)(1).)

Generally, "[t]he issue of adoptability posed in a section 366.26 hearing focuses on the minor, e.g., 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.) "[T]he fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor's age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parent's willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family." (Id. at pp. 1649-1650.)

We review a finding of adoptability 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." (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)

The parents assert the minors are not generally adoptable. They point out the minors had emotional problems -- D. R. had a language disorder and S. R. was once diagnosed as possibly autistic -- were a sibling group, had behavioral problems, a history of developmental delays, and their first prospective adoptive placement failed. They argue the minors could be only specifically adoptable, and the juvenile court should have continued the dependency to see if the new placement worked out.

The minors had many attributes supporting the finding that they were generally adoptable. They were young, friendly, and generally physically healthy children. Being a 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, 1240-1241), and Wittorff testified that families interested in adoption were looking for a small sibling set like this. The minors attracted considerable interest in a short span of time. Five or six families expressed interest in placement for adoption, and while the first placement failed, Sacramento County was able to find another, better suited family in a short time.

The parents seek to minimize the relevance of the new prospective adoptive family, pointing out that the new prospective adoptive family spent less time with the minors before placement (11 hours) than did the failed family (40 hours). Their argument overlooks significant differences between the families. The failed first family was a single parent with no parenting experience. This stands in sharp contrast to the new prospective adoptive family, a two-parent household with two years of foster parenting experience, which included a sibling set of three children, one of whom with needs like D. R.'s. The new family was not overwhelmed by the challenges presented by the minors and was actively seeking special needs children to adopt.*fn3

When compared to these considerable strengths, the minors' problems do not undermine the juvenile court's findings. The parents note S. R.'s earlier diagnosis of possible autism and the absence of any medical diagnosis confirming that she did not have this condition. However, the neurologist diagnosed S. R. only with possible autism and recommended an EEG if her staring episodes did not improve. S. R.'s staring episodes improved considerably after leaving the parents' care. While the staring episodes did not completely disappear, substantial evidence supports the inference that S. R. was not autistic.

The minors had behavioral problems -- D. R. was developmentally delayed, had a short attention span, needed individual attention, and had hyperactivity and poor focus, while S. R. tended to shut down during stress, had delayed self-help skills, and was prone to sudden crying. However, those problems improved considerably after they were removed from their parents and placed in foster care. This strongly suggests that the minors' difficulties were more from the neglect they experienced at the hands of their parents rather than some fundamental physical or mental disability. Although D. R. regressed somewhat during the failed adoptive placement, his problems are not so insurmountable as to be a barrier to his adoptability.

Being less adoptable than other minors does not prevent a minor from being generally adoptable. "Not all dependency cases fall neatly into one of two scenarios: one, the availability of a prospective adoptive parent is not a factor whatsoever in the social worker's adoptability assessment; or two, the child is likely to be adopted based solely on the existence of a prospective adoptive parent. These scenarios represent opposite ends on the continuum of when a child is likely to be adopted. However, many adoption assessments that recommend an adoptability finding fall somewhere in the middle. They consist of a combination of factors warranting an adoptability finding, including, as in this case, the availability of a prospective adoptive parent. This is the reality we confront, notwithstanding appellate arguments that assume a child is either generally adoptable without regard to a prospective adoptive parent or specifically adoptable based solely on the availability of a prospective adoptive parent." (In re G.M. (2010) 181 Cal.App.4th 552, 562.)

This is not a case where the minors' adoptability relies solely on the opinion of a social worker (In re Brian P. (2002) 99 Cal.App.4th 616, 624) or a couple's willingness to adopt them. The new prospective adoptive family and their willingness to adopt special needs children was one of several factors supporting the juvenile court's finding that the minors were likely to be adopted. The minors are young and loving, displayed resilience in the face of adversity, and showed the capacity to overcome the traumas which the parents have inflicted upon them. Combined with a new family well qualified to address whatever challenges the minors may present, substantial evidence supports the juvenile court's finding that the minors were likely to be adopted.

II The Assessment

The parents contend the assessment was inadequate in that it did not meet the statutory criteria. They are mistaken.

When the juvenile court orders a section 366.26 hearing after terminating services at the permanency review hearing, section 366.22, subdivision (c)(1) requires the county adoption agency to prepare an assessment. The assessment includes information from which the court can assess the minor's likelihood of adoption if parental rights are terminated and any characteristics which may make the minor difficult to place. (§§ 366.21, subd. (i); 366.22, subd. (c)(1).)

The adoption assessment was prepared in April 2010 and an addendum was filed in May 2010. The minors were placed in the initial failed adoptive placement in June 2010, and Sacramento County identified the new prospective adoptive parents after that. The parents argue the adoption assessment prepared by Sacramento County was inadequate because it did not reflect the changed circumstances of the failed first placement and the new adoptive placement. They assert the failure to prepare another report reflecting these changes prejudicially deprived the juvenile court of information necessary to determine whether the minors were likely to be adopted.

Deficiencies in the assessment pertain to the weight of the evidence before the juvenile court. (In re Crystal J. (1993) 12 Cal.App.4th 407, 413.) The requirement that an assessment be prepared containing certain information is an evidentiary matter. Accordingly, failure by a party to the proceeding to object in the juvenile court to the sufficiency of the assessment precludes raising that issue on appeal. (In re Urayna L. (1999) 75 Cal.App.4th 883, 886; Crystal J., at pp. 411-412.)

The father did not object to the adoption assessment. The mother objected to the assessment "in that she believes that the children are specifically and not generally adoptable." Assuming the mother's objection preserves the issue for appellate review, we find any deficiencies in the adoption assessment were cured by Wittorff's testimony.

Wittorff testified about the failed adoptive placement and its effect on the minors and on the new potential adoptive placement. Her direct testimony and extensive cross-examination provided the juvenile court with ample evidence regarding both placements. The mother's assertion that Wittorff's "lengthy testimony" left too many unanswered questions about the new placement and the minors' adoptability is unfounded. The lack of a written report reflecting the changed circumstances did not deprive the juvenile court of any relevant information and does not diminish the substantial evidence supporting the juvenile court's findings. (See In re Crystal J., supra, 12 Cal.App.4th at p. 413 ["Reviewing the totality of the evidence before the court, including not only the assessment reports . . . we conclude there was ample evidence to support the court's findings and judgment"].)


The juvenile court's orders are affirmed.

We concur: NICHOLSON , Acting P. J. MAURO , J.

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