IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte)
August 4, 2011
IN RE H.A. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. BUTTE COUNTY DEPARTMENT OF EMPLOYMENT AND SOCIAL SERVICES, PLAINTIFF AND RESPONDENT,
H.A., DEFENDANT AND APPELLANT.
(Super. Ct. Nos. J29771, J33677, J33678)
The opinion of the court was delivered by: Raye , P. J.
In re H.A.
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, the father of minors H.A., K.T., and R.A., appeals from the juvenile court's orders entered pursuant to a Welfare and Institutions Code section 366.26*fn1 hearing finding the minors adoptable, declining to terminate parental rights, and continuing the case for 176 days. (§§ 395, 366.26, subd. (c)(3).)
Appellant contends there is insufficient evidence to support the juvenile court's findings that the minors were adoptable. We shall affirm the juvenile court's orders.
In June 2002 13-month-old K.T. was removed from her mother and placed in foster care when the mother was arrested for being under the influence. The Butte County Department of Employment and Social Services (DESS) filed a dependency petition (§ 300) in June 2002. The petition was sustained in August 2002 and dismissed in September 2002, with joint legal custody to the parents and sole physical custody to appellant.
In October 2007 the minors were placed in protective custody after appellant was arrested for physically abusing H.A. at an Oroville grocery store. DESS filed dependency petitions alleging jurisdiction over the minors pursuant to section 300, subdivisions (a) and (j), which were sustained by the juvenile court in January 2008. At the February 2008 disposition hearing the juvenile court continued the minors' removal, ordered services for appellant, and denied services for the mother.
The December 2008 12-month report recommended returning R.A. and K.T. to the mother and continuing H.A. in foster care, with services for both parents. The mother completed extensive services on her own and had an extended visit with the minors in November 2008. H.A.'s angry outbursts during the visit disturbed his mother, who took him to the emergency room. The examining doctor concluded H.A. was a danger to himself and others, and he was hospitalized.
In December 2008 the juvenile court returned R.A. and K.T. to the mother with maintenance services and continued H.A. in foster care, with an additional six months of services for the parents. The mother abandoned R.A. and K.T. at the DESS offices in March 2009 after being requested to submit to a drug test. DESS filed supplemental petitions for more restrictive placement (§ 387), and R.A. and K.T. were detained later that month.
K.T. was refusing visits with appellant and got physically ill before scheduled visits in January and February 2009. The visits were subsequently canceled. After H.A. told appellant that he hated him and alleged appellant molested him, DESS asked the juvenile court to terminate his visits with appellant.
Six-year-old H.A. was diagnosed with posttraumatic stress disorder (PTSD). H.A. repeatedly told his therapist that he hated his father, who should be put back in jail. In June 2009 a foster parent heard him ask his sister R.A., "Do you want to have sex with me?"
The juvenile court sustained the supplemental petition in May 2009.
A June 2009 report related K.T. was in weekly counseling sessions and had been diagnosed with mood disorder and PTSD. K.T.'s verbal reasoning tested as low average and her nonverbal reasoning tested as average. She demonstrated sexualized behavior at the foster home, including acting out with an eight-year-old girl and pulling down the pants of another foster child. In May 2009 K.T.'s therapist told DESS that K.T. reported appellant molested her and the other minors.
An August 2009 report related H.A. was not showing sexualized behavior in his current foster home and was addressing the issue in therapy. H.A. had had five foster care placements since October 2007. He was placed initially in a temporary care home, then spent a year with K.T. and R.A. in a foster home. He was next placed with his mother and the other minors, but removed in November 2008 after he was found to be a danger to himself and others. He was placed in a third foster home after his release from the hospital, but was removed following sexualized behaviors and being molested by a 16-year-old foster child. He was then placed in another foster home, where he had been stable for one and one-half months at the time of the report.
Following a contested hearing in September 2009, the juvenile court terminated services for both parents and set a section 366.26 hearing.
An adoption assessment by the California Department of Social Services (CDSS) recommended a plan of adoption without an immediate termination of parental rights. Since 2002, shortly after his birth, seven-year-old H.A. had been in nine foster placements. Since 2002 his sister K.T. had been in five foster homes, and since 2007 R.A. had been in four. The minors had all shown remarkable improvement over the previous six months.
The CDSS report described H.A. as an active, high-energy boy who demanded constant supervision, guidance, and direction. He was intelligent and aware, but could be defiant and aggressive if he did not get his way. H.A. was taking prescribed psychotropic medications and was in therapy for PTSD and mood disorder.
Seven-year-old H.A. was having great difficulty dealing with the death of his mother, who was murdered by her boyfriend in October 2009. He started stealing and having more trouble at school after learning about her death. However, he had made a good adjustment to his recent foster placement and the current foster parents did not report any destructive behaviors. H.A. felt close to his foster father and loved to be with him.
Eight-year-old K.T. was a creative, high-energy girl who loved music, loved to sing and dance, and desperately wanted to be a part of a permanent family. She demonstrated some sexualized behaviors and age-inappropriate interest in sexual activity, which alienated other children. Her feelings were easily hurt and she tended to "read into things that are said," leading to several fights at school. She demanded a great deal of attention and guidance, and was taking medication for depression.
Five-year-old R.A. was a charming and active girl with minimal behavioral problems. Her foster mother was concerned she was a detached child and too independent.
Neither set of foster parents was willing to adopt the minors. CDSS was considering adoptive placement for K.T. and R.A. with a married couple who were friends of their current foster parent.
Since K.T. and R.A. liked to go to church, the foster mother, who did not attend church, asked the potential adoptive parents to take the girls to church with them. The girls had attended church with the potential adoptive parents since summer, and had spent several weekends with them. Although the family was certified for foster care and had nearly completed the adoption home study, CDSS still had some concerns. CDSS had not yet identified a suitable family for H.A., who needed time to accept his mother's death.
A January 2010 report from DESS related that K.T. was now diagnosed with attention deficit hyperactivity disorder, obsessive compulsive disorder, and bipolar disorder with sexual symptoms. She took two prescribed psychotropic medications. The minors were seeing therapists to address the loss of their mother as well as the various traumatic incidents in K.T.'s and H.A.'s lives. DESS did not recommend termination of parental rights at the time as potential adoptive homes had not been identified, but nonetheless recommended adoption as the permanent plan.
CDSS issued a supplemental report in March 2010, now recommending termination of parental rights after making progress on finding potential adoptive homes. K.T.'s situation remained the same, R.A. was doing well in her foster placement, and H.A. was doing much better. H.A. no longer acted out, had stopped stealing and lying, and was more engaging and less defiant, telling the adoptions specialist he had "learned his lesson."
K.T. and R.A. now spent much of their weekends with the previously identified potential adoptive family, and earlier concerns about the family's dealing with K.T.'s sexualized behavior were resolved. The family set up separate bedrooms for the girls, who now spent Saturday evenings at the home to make it easier for them to go to church the next morning. K.T.'s behaviors were appropriate, and the father was comfortable relating to her. A recent visit with the girls at the family's home showed the children and adults were comfortable with one another. The girls expressed great happiness at the prospect of being adopted by this couple.
A suitable family was found for H.A. They were a married couple, aged 47 and 45, who knew H.A.'s foster father. They had previous foster care and mentoring experience, which sparked their interest in adoption. Although they were not far along in the process, CDSS was highly optimistic about H.A.'s potential adoptive family, who were recommended by H.A.'s foster parents. The family had met H.A. several times and felt strongly about adopting him.
CDSS issued another report in April 2010. The potential adoptive parents for K.T. and R.A. were now completely comfortable with the girls. The visits were going well; the children were well behaved and happy to be spending time with the potential adoptive family.
H.A. was now visiting his potential adoptive family. He spent Easter Sunday with them and had a happy time. The foster parents described H.A.'s behaviors as "up and down," and he tended to act out emotions with attention-seeking behavior. H.A. was excited about the idea of having a permanent family and seemed happy about the potential adoptive family. He enjoyed his time with them and presented positively.
CDSS concluded adoption was the appropriate plan for the minors. Their behaviors, while "challenging at times, are not so severe [as] to suggest that they would not benefit by a plan of adoption." The minors had demonstrated their capacity to improve their behavior and made significant improvements in their recent foster placement.
The CDSS report identified several reasons supporting adoptive placement -- the minors' respective foster homes were committed to helping with their transition to adoptive homes; the minors understood what was expected of them and responded positively to those expectations. The potential adoptive parents were thoroughly assessed: the girls' potential adoptive parents had nearly completed their adoption home study, and H.A.'s had started theirs. Although the minors were exposed to significant trauma and experienced possible prenatal exposure to drugs and alcohol, the report concluded their situation was "not vastly different from many children in foster care."
CDSS was still concerned about the minors' reaction to their mother's death. Recognizing the need to proceed with caution, CDSS was committed to a plan of adoption but was "not as invested in an order of termination of parental rights at this time," and was willing to accept a plan of adoption without immediate termination of parental rights.
At the contested section 366.26 hearing, the adoption specialist testified that the minors were generally adoptable and the girls' potential adoptive parents were committed to adopting them. The specialist recommended against terminating parental rights because it was important to first get the children into the potential adoptive homes, support the placements, and continue to evaluate them.
K.T. and R.A.'s foster mother believed the girls were adoptable but not ready for adoption. She could provide them with long-term care but preferred to see them adopted by a younger family because of her age.
The minors' court appointed special advocate (CASA) testified that K.T. misbehaved at school following her mother's murder. She had recently received a report indicating H.A. was considered "fetal alcohol exposed."
According to K.T.'s therapist, K.T. was now diagnosed with static encephalopathy with alcohol implications resulting from fetal exposure to alcohol, reactive attachment disorder, and PTSD. K.T. required more structure and rules than most children, and had a number of behaviors that would make the move to a new home difficult.
The adoption specialist acknowledged H.A. and K.T. had exceptional and special needs. H.A.'s potential adoptive family had a discussion with H.A. regarding appropriate behavior and how important it is to respect people's bodies. The couple was very firm about what is and is not acceptable, and H.A. responded well to the discussion.
On June 30, 2010, the juvenile court found by clear and convincing evidence that the minors were adoptable and none of the exceptions to terminating parental rights applied. It identified adoption as the permanent plan goal but did not order termination of parental rights. The juvenile court set a continued section 366.26 hearing for December 23, 2010, for receipt of reports on attempts to locate an adoptive family.
Appellant asserts the juvenile court's orders were appealable under either subdivision (c)(1) or (c)(3) of section 366.26.
The juvenile court found the minors were adoptable and none of the statutory exceptions to adoption applied, but did not terminate parental rights, instead continuing the case for 176 days, from June 30, 2010, to December 23, 2010.
Section 366.26, subdivision (c)(1) (hereafter section 366.26(c)(1)) provides, in relevant part: "If the court determines . . . , 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 California Rules of Court likewise require the juvenile court to terminate parental rights and place the minor for adoption once the court finds the child is adoptable by clear and convincing evidence and none of the statutory exceptions to adoption apply. (Cal. Rules of Court, rule 5.725(d)(1).)
Section 366.26, subdivision (c)(3) (hereafter section 366.26(c)(3)) provides, in relevant part: "If the court finds that termination of parental rights would not be detrimental to the child . . . and that the child has a probability for adoption but is difficult to place for adoption and there is no identified or available prospective adoptive parent, the court may identify adoption as the permanent placement goal and without terminating parental rights, order that efforts be made to locate an appropriate adoptive family for the child . . . within a period not to exceed 180 days. . . . For purposes of this section, 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 seven years of age or more."
Noting an apparent conflict in the juvenile court's rulings, appellant contends the orders violated either provision of section 366.26. Appellant argues the juvenile court violated section 366.26(c)(1) by not terminating parental rights after finding the minors were adoptable and none of the exceptions to adoption applied. He also argues section 366.26(c)(3) was inapplicable, since the juvenile court had "found available prospective adoptive parents." We disagree, because the juvenile court's findings and orders, although imprecisely worded, are more consistent with section 366.26(c)(3).
The phrase "prospective adoptive parent" is a statutory term of art. For a current caretaker to be designated a child's "prospective adoptive parent," the child must have lived with that caretaker for at least six months, and the caretaker must have expressed a commitment to adopting the child as well as taken at least one step to facilitate the adoption process. (§ 366.26, subd. (n)(1).) Although potential adoptive families were identified for both sets of minors, neither family had lived with their minors for six months at the time of the section 366.26 hearing. Thus, the identification of potential adoptive families for the minors did not preclude the juvenile court from applying section 366.26(c)(3).
The minors satisfy section 366.26(c)(3)'s requirement of being difficult to place -- K.T. and H.A. were seven years old or older and took psychotropic medications for their substantial mental health problems, while R.A. was part of a sibling group with K.T. Also, the 176-day continuance is within section 366.26(c)(3)'s 180-day time limit. Finally, the Judicial Council form JV-320 completed for each minor indicated the juvenile court's orders were entered pursuant to section 366.26(c)(3). Although the juvenile court did not specifically find the minors were difficult to place and found they were adoptable rather than that there was a "probability of adoption," the orders are nonetheless more consistent with section 366.26(c)(3) than section 366.26(c)(1).
We presume the juvenile court understood and correctly applied the law. (People v. Sangani (1994) 22 Cal.App.4th 1120, 1138; In re Fred J. (1979) 89 Cal.App.3d 168, 175; Evid. Code, § 664.) If the juvenile court intended to apply Welfare and Institutions Code section 366.26(c)(1), then it would have terminated parental rights. It is clear from the extensive evidence of the minors' prospects for adoption and the juvenile court's findings that the minors were adoptable that it did not yet want to terminate parental rights in light of the minors' well-documented problems.
We conclude the juvenile court's findings and orders were entered pursuant to section 366.26(c)(3). Findings and orders entered under this provision are appealable. (In re S.B. (2009) 46 Cal.4th 529, 534.)
Appellant contends the evidence was insufficient to support a finding that the minors were likely to be adopted. We disagree.
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.) 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.)
Appellant notes K.T. and H.A. have significant mental health issues, and R.A., while lacking those problems, is part of a sibling group with her sister K.T. He asserts there was no evidence the potential adoptive families could handle the minors' special challenges, and CDSS's reluctance to recommend terminating parental rights is evidence the minors are unlikely to be adopted within a reasonable time.
While K.T. and H.A. had mental health problems, they were physically healthy. K.T. and R.A. are a sibling group, but they had an identified potential adoptive family. This family had significant contact with the girls -- taking them to church and having extended visits, including overnight stays. The last CDSS report noted the family was completely comfortable with the girls and confident they were the right family for them. While H.A.'s potential adoptive family was not as far along in the process, they felt strongly about adopting him.
K.T. and H.A. had acted out in the past, but their behavior improved markedly with their last foster placements. Their resilience in the face of considerable adversity is evidence that they are capable of making the transition to an adoptive home. While the minors present exceptional challenges, CDSS's detailed report and the extensive testimony at the section 366.26 hearing show that these challenges are far from insurmountable to adoptive parents with proper understanding, training, and commitment. Both sets of potential adoptive parents were being made aware of the special challenges the children presented, they were in the process of getting the necessary training at the time of the juvenile court's ruling, and both were committed to adoption.
The minors responded positively to their respective potential adoptive families. K.T. and R.A. enjoyed their time with their potential adoptive family and were very happy at the prospect of being adopted by this couple. The adoptions specialist testified that H.A., like his sister K.T., "desperately want[ed] to belong somewhere." Since March or early April 2010, H.A. had gone to church with the family and spent Sundays with them. H.A. responded "extremely positively" to the family. He was "starting to ask a lot of questions wondering when it's going to happen," and was anxious about not being with the family.
Appellant notes K.T.'s foster mother was concerned that her potential adoptive family has a 12-year-old grandson who visits every summer. He argues this renders the family inappropriate for K.T. in light of her history of sexually inappropriate behavior. Appellant's argument ignores the marked improvement in K.T.'s behavior and that she has engaged in no sexual behaviors with her potential adoptive family.
As appellant notes, K.T. and R.A.'s foster mother was concerned their potential adoptive parents were not yet ready to have the girls move into their home. The family had no experience with foster children in their home, and the foster mother believed that prematurely moving the girls would be detrimental to them. However, a finding of adoptability does not require the minor be ready for immediate adoption, only that the minor can be adopted within a reasonable time.
Appellant's reliance on In re Brian P. (2002) 99 Cal.App.4th 616 (Brian P.) is misplaced. Brian P. involved a four-year-old child with a history of "developmental difficulties"; the boy had just begun to speak, and the social worker "relied on facial expressions and gestures to infer that he was happy in his foster placement." (Id. at p. 625.) In that case, although the reports prepared for the section 366.26 hearing stated the child was adoptable, they contained no evidence to support this conclusion, and the appellate court determined "[the] record raise[d] as many questions as assurances about his adoptability." (Brian P., at pp. 624-625.) The court concluded the "fragmentary and ambiguous evidence was not enough to buttress the [social service a]gency's position that [the child] was adoptable." (Id. at p. 625.)
Unlike Brian P., the juvenile court here did not terminate parental rights. (Brian P., supra, 99 Cal.App.4th at p. 618.) If the potential adoptive placement falls through or other developments arise that diminish the minors' adoptability, then the juvenile court can revisit its findings and consider alternatives to adoption as the permanent plan.
The instant case also differs from Brian P. as the record contains detailed information about the minors' developmental, physical, and emotional statuses. The findings of adoptability were supported by evidence of the minors' characteristics, their markedly improved behavior, the desire of specific families to adopt them, and the minors' relationship with their respective potential adoptive families. Accordingly, substantial evidence supports the court's determination that the minors were likely to be adopted in a reasonable time.
The juvenile court's orders are affirmed.
We concur: HULL , J. HOCH , J.