IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
September 28, 2011
IN RE A.S. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
I.Y.-S ET AL., DEFENDANTS AND APPELLANTS.
(Super. Ct. Nos. JD229351, JD229352, JD229353)
The opinion of the court was delivered by: Hoch , J.
In re A.S.
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
I.Y.-S. (mother) and A.S. (father)*fn1 appeal from the juvenile court's orders terminating their parental rights and ordering a permanent plan of adoption as to minors I.C., F.C., and A.S. (Welf. & Inst. Code, § 366.26.)*fn2
The parents' arguments (either both or individually) can be summarized as follows: (1) Sacramento County Department of Health and Human Services' (the Department) section 366.26 reports are not sufficient to support the finding of adoptability; (2) the minors are not adoptable based on the ages of the minors and the fact that the minors are part of a sibling group; (3) the juvenile court improperly placed the burden of proof on the parents to show the minors were not adoptable; and (4) the minors' wishes were not considered before parental rights were terminated. We find that there is sufficient evidence to support the juvenile court's finding of adoptability. While the ages of the minors and their sibling group are factors in determining adoptability, the individual characteristics of the minors and the willingness of the caretakers and maternal grandmother to adopt the minors support the finding of adoptability. And the father's argument challenging the burden of proof is deemed abandoned. With respect to the minors' wishes, we conclude that the juvenile court was informed about the minors' wishes to the extent they could be ascertained given the minors' young ages. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On March 10, 2009, the Department filed section 300 petitions as to I.C. (a 6-year-old female), F.C. (a 4-year-old male), and A.S. (a newborn male), alleging: Mother had a substance abuse problem from which she had not rehabilitated. A.S. tested positive for methamphetamine at birth. Mother's roommate used methamphetamine. Mother allowed a neighbor who had recently been paroled to provide daycare for the minors. Mother and F.O., biological father of A.S., had engaged in domestic violence, most recently on or about September 1, 2008.
Mother admitted she had used methamphetamine since age 13, most recently around five days before delivering A.S. She was married to father, who was incarcerated at Deuel Vocational Institution (as was F.O., A.S.'s biological father). Mother said that R.C., whom mother believed to be in Mexico, was the father of I.C. and F.C.
The jurisdiction/disposition report recommended that the juvenile court sustain the section 300 petitions, place the minors with the maternal great-aunt and great-uncle in Tulare, California, and offer services to the parents (to mother as to all the minors, to father as to A.S. only). No services were recommended for biological father F.O. or for R.C., recently deported to Mexico.
Mother admitted her problems with methamphetamine and domestic violence. She had begun the STARS program (a drug treatment program in Sacramento) to address her substance abuse and had enrolled in parenting classes.
Father remained incarcerated, with a projected release date in May 2009. He denied domestic violence and substance abuse. He wanted to reunify with the minors.
The older minors said father physically abused them and engaged in domestic violence with mother, with whom they wanted to live. Their foster parent said the minors were adjusting well in placement, but feared father.
The maternal great-aunt had known the older minors from infancy, but had not seen them since relocating to Tulare, three hours from Sacramento. She was open to caring for all three minors through adoption or guardianship if mother could not reunify with them.
At the jurisdiction/disposition hearings, the juvenile court sustained the allegations of the section 300 petitions, placed the minors with the maternal great-aunt and great-uncle, ordered services for mother as to all the minors and for father as to A.S., and made a no-contact order for father as to I.C. and F.C.
The permanency report, filed November 26, 2009, recommended terminating the parents' services and setting a section 366.26 hearing.
Father was incarcerated in Placer County jail and could not participate in services.
Mother was convicted of a drug possession offense in May 2009 and incarcerated in Yuba County, then deported to Mexico on November 17, 2009. Until her incarceration, she had visited the minors regularly, but had not completed the STARS program or domestic violence counseling. She still hoped to reunify with the minors; in the alternative, she wanted them to live with the maternal grandmother in Roseville or their current caretakers.
The minors, placed with the maternal great-aunt and great-uncle, were doing well, although I.C. and F.C. had been referred to counseling.
The maternal great-aunt and great-uncle stated they would adopt the minors if reunification failed. The maternal grandmother requested a reassessment of her home for possible placement of the minors.
An addendum report filed December 11, 2009, stated that the maternal grandmother's home had been approved for placement. I.C. and F.C. had begun counseling. The minors' counseling reports noted that both minors suffered from adjustment disorders.
An addendum report filed January 8, 2010, stated: Due to father's incarceration, he had not participated in services or had contact with the minors. The maternal grandmother's kinship referral and home study were positive.
At a pretrial conference on January 11, 2010, the juvenile court stated that it had heard the maternal grandmother was willing to adopt all the minors, but the maternal great-aunt was prepared to adopt only one and to care for the others under a guardianship.
An addendum report filed February 17, 2010, stated that the current caretakers (maternal great-aunt and great-uncle) once again wanted to adopt all the minors. In the Department's opinion, the minors were bonding with their caretakers, and it would be detrimental to them to move them back and forth from Tulare to the Sacramento area.
A conflict had developed between the current caretakers and the maternal grandmother. The caretakers said that when mother called with the maternal grandmother on the line, mother made death threats against them.
At a contested permanency hearing on March 15, 2010, the juvenile court terminated father's services but continued services for mother.
A permanency review report filed April 8, 2010, recommended six more months of services for mother. She had returned from Mexico and was staying with an uncle in North Highlands. She had suffered no criminal convictions within the last six months and was again participating in services.
I.C. and F.C. were doing well in school, but were continuing counseling to address issues of physical abuse, domestic violence, and any other issues deemed appropriate by the therapist. Although they had adjusted well to their placement, they complained of harsh discipline in the home. They wanted either to go back to their mother's care or to live with their maternal grandmother.
Both the current caretakers and the maternal grandmother stated that they wanted to adopt all the minors.
At a permanency review hearing on May 10, 2010, the juvenile court was advised that mother was in custody in Placer County and might be deported again.
An addendum report filed May 24, 2010, recommended terminating mother's services and setting a section 366.26 hearing. In addition to mother's latest legal troubles, she had recently tested positive for alcohol and methamphetamine and had been dismissed from her drug program for noncompliance.
At a contested permanency review hearing on June 7, 2010, the juvenile court terminated mother's services and set a section 366.26 hearing on October 4, 2010.
The section 366.26 report stated that the minors had developed a positive relationship with the caretakers and the extended biological family. The minors were all developmentally on target and had no health problems. I.C. and F.C. were doing well in school, although F.C. had "some issues with being defiant" there.
The caretakers had concerns about I.C.'s and F.C.'s behavior in the home. F.C. still wet the bed at night and had been seen hitting A.S. in the head with a book. I.C. had a tendency to talk back. I.C. and F.C. used to lie a lot, though that had improved since they were placed with the caretakers. They remained in counseling.
The caretakers reported that mother had continued to threaten them and they feared for the safety of their biological children. The maternal great-aunt said they would be willing to take guardianship of all three minors, "but [did] not believe that adoption of all three would ensure their safety."*fn3 They would be willing to adopt A.S. They knew that the maternal grandmother was interested in adopting I.C. and F.C.
The minors were "generally adoptable." Although "a sibling set of three," they are young "and their behaviors are minimal [sic]." However, because of mother's threats, the caretakers were not committed to adopting any of the minors at this time. They might be willing to provide guardianship to all and to adopt A.S., while the older minors might be adopted by the maternal grandmother.
Because of the "uncertainty" surrounding placement, the Department requested a 180-day continuance.
The report recommended the finding that (a) it would not be detrimental to the minors to terminate parental rights and the minors had a high probability of adoption, but (b) they were "difficult to place for adoption and there [was] no identified or available prospective adoptive parent because [¶] [t]he children are member[s] of a sibling group [and] [t]he child, [I.C.], are [sic] the age of seven or more."
The juvenile court did not grant the Department's 180-day continuance request, but the matter was repeatedly continued for other reasons. As of November 29, 2010, the caretakers did not want to adopt all three minors.
An addendum report filed December 13, 2010, stated that the caretakers once more wanted to adopt all the minors. The Department recommended this course because the minors had been in the caretakers' home since June 2009 and there were no concerns about the placement at this time.
On January 12, 2011, the juvenile court held a contested section 366.26 hearing. Mother, in custody in Arizona, was not present, and the court denied her counsel's request for a continuance. Father testified that he wanted the minors placed with the maternal grandmother because of concerns about the current caretakers' home.
Christina Rodriguez, the adoptions social worker who prepared the December 2010 addendum report, testified that she took over the case in late November 2010 from a social worker who did not speak Spanish. Rodriguez learned that the caretakers had not understood adoption would terminate the juvenile court's jurisdiction over the minors; once they knew that, they wanted once again to adopt all the minors. Rodriguez knew of no reason why the caretakers would not pass a home study. She had not spoken with the minors or visited the caretakers' home yet, but would do so soon.
The parents opposed the termination of parental rights and the ordering of a permanent plan of adoption. Mother's counsel asserted: (1) the caretakers had "flip-flopped" about adoption, and (2) the social worker had not spoken to the minors and the section 366.26 report did not discuss their wishes.
The juvenile court found that the minors were generally adoptable; in other words, the court did not have to find that any particular person or persons wanted to adopt them now. Nevertheless, the court believed that their caretakers did want to do so. Their prior confusion on this point was "somewhat due to a language problem"; in any event, the legal difference between guardianship and adoption is not easy for laypersons to understand. Any problems the minors might have, such as F.C.'s bedwetting, were not unusual for children who had been through what these minors had been through and did not make them unadoptable. Because adoption is the preferred plan when minors are adoptable and no exception to adoption has been shown, the court would choose that plan.
The juvenile court thereafter entered written orders terminating parental rights and ordering a permanent plan of adoption for the minors.
Substantial Evidence Supports the Finding of Adoptability
Both parents contend that there is no substantial evidence the minors are adoptable.*fn4 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).) We review the juvenile court's finding that the child is likely to be adopted within a reasonable time under the substantial evidence standard, giving it the benefit of every reasonable inference and resolving any evidentiary conflicts in favor of affirming. (In re I.I. (2008) 168 Cal.App.4th 857, 868.) That is, we must determine whether the record contains substantial evidence from which the court could find clear and convincing evidence that the child was likely to be adopted within a reasonable time. (In re B.D. (2008) 159 Cal.App.4th 1218, 1232.)
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.) The law does not require the juvenile court to find before terminating parental rights that a dependent child is "generally adoptable," or that additional approved families are willing and able to adopt the child if a prospective adoptive placement falls through. (In re A.A. (2008) 167 Cal.App.4th 1292, 1313-1314.) The fact that a prospective adoptive parent who already has custody of a child wants to adopt him or her is evidence that the child is likely to be adopted by that prospective adoptive parent or some other in a reasonable time. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154; In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1651.)
Here, there was substantial evidence that the minors were likely to be adopted by their current caretakers. The minors had already been with them for over a year and a half and had bonded with them and their biological children, according to the section 366.26 report and the prior addendum report of February 2010. The caretakers' former reasons for vacillation were no longer operative: they now understood the difference between adoption and guardianship, and they did not need to fear mother's threats because she would soon be deported again. Thus, they wanted to adopt all the minors. They were able to meet I.C.'s and F.C.'s behavioral and emotional needs. These needs were not unusual for children who had been subjected to chronic parental substance abuse and domestic violence, and for which counseling was well underway. The Department knew of no reason why adoption by the caretakers would be inappropriate. This was sufficient evidence to support the juvenile court's finding. (In re Lukas B., supra, 79 Cal.App.4th at p. 1154; In re Sarah B., supra, 22 Cal.App.4th at pp. 1649-1651.)
The parents' contrary arguments are not persuasive. We will address the parents' arguments first, followed by the arguments by the mother and then the father.
The parents assert that neither the section 366.26 report nor the addendum report and testimony of social worker Rodriguez supports the finding of adoptability, because: (1) the section 366.26 report "[did] not even opine that the children are likely to be adopted, but simply state[d] in the 'Likelihood of Adoption' section that the children are all generally adoptable"; (2) the section 366.26 report requested a 180-day continuance due to the uncertainty over who was prepared to adopt any or all of the minors; (3) the section 366.26 report gave little new information about the minors; (4) the addendum report gave no further information about the minors and did not discuss their adoptability; (5) neither Rodriguez nor the social worker who wrote the section 366.26 report had visited the caretakers' home, and Rodriguez had not spoken to the minors; (6) Tulare County social workers had repeatedly visited the home, but provided no written report "to back up the opinion that the children were somehow generally adoptable"; (7) there was no evidence as to A.S.'s "mental health, or sociability"; and (8) there was no evidence of approved families ready to adopt the minors. We disagree.
These alleged problems do not refute the juvenile court's finding that the minors were likely to be adopted by the current caretakers or by some other prospective adoptive family within a reasonable time. The "uncertainty" about the caretakers' wishes had vanished by the time of the section 366.26 hearing, and the parents' speculation that the caretakers might change their minds again lacks any evidentiary basis. The reports indicated no problems with A.S.'s "mental health, or stability." Prospective adoptive parents need not be already "approved" before the court can find the minors adoptable. (In re A.A., supra, 167 Cal.App.4th at pp. 1313-1314.) The parents cite no authority suggesting that the other points they raise had to be settled before the court could find adoptability. Furthermore, at the selection and implementation stage, the minors' interest in a stable and permanent placement is paramount and adoption becomes the presumptive permanent plan. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.)
The parents cite numerous cases in which the courts either found no substantial evidence of adoptability on facts allegedly similar to those here or found substantial evidence of adoptability on facts allegedly different from those here. But because the question whether substantial evidence supports a ruling necessarily turns on the particular facts of the case, comparisons to other cases with different facts are usually unhelpful. Therefore, we decline to discuss the cases cited by the parents.
Mother asserts that the minors were not generally adoptable because the two older minors were or soon would be seven years old, "an age at which children are generally considered unlikely to be adopted" (In re B.D., supra, 159 Cal.App.4th at pp. 1238-1239), and the minors were a sibling group who had been together all their lives. But the current caretakers' willingness to adopt all of the minors makes their general adoptability irrelevant. (See In re A.A., supra, 167 Cal.App.4th at pp. 1313-1314.)
In any event, age alone cannot show that any particular minor is unadoptable, since adoptability focuses on the minor's individual characteristics. (In re Sarah M., supra, 22 Cal.App.4th at p. 1649.) And by finding the minors' behavior problems "minimal," the section 366.26 report concluded that the minors' individual characteristics (aside from age) did not make the minors difficult to place.
Mother asserts that the older minors' emotional problems and alleged need for long-term counseling make them unadoptable. But the current caretakers are familiar with their emotional problems and prepared to meet their needs. Furthermore, prospective adoptive parents in general can be expected to realize that children in the dependency system are likely to suffer from emotional problems and to need continuing counseling. As the juvenile court impliedly found, I.C.'s and F.C.'s problems and needs were not out of the ordinary in this light.
Father asserts that the juvenile court improperly placed the burden of proof on the parents to show the minors were not adoptable, rather than on the Department to show that they were. But rather than explain his position, he quotes from the court's ruling as if it self-evidently made his point. Because father has not offered a reasoned argument on this point, we deem it abandoned. (In re S.C. (2006) 138 Cal.App.4th 396, 408.)
Contrary to all these arguments, substantial evidence supports the juvenile court's finding that the minors are likely to be adopted within a reasonable time.
Consideration of the Minors' Wishes
Mother contends the juvenile court erred by terminating parental rights without any evidence of the minors' wishes. Taking this contention to be a subset of her substantial-evidence attack on the court's finding of adoptability (see In re Joshua G. (2005) 129 Cal.App.4th 189, 200, fn. 12), we reject it.
At all proceedings under section 366.26, "the court shall consider the wishes of the child and shall act in the best interests of the child." (§ 366.26, subd. (h)(1).) However, unless the child is age 12 or over and objects to the termination of parental rights, this does not mean that the court must follow the child's wishes, because what a child wants is not necessarily determinative of his or her best interests. (§ 366.26, subds. (c)(1)(B)(ii), (h); In re Joshua G., supra, 129 Cal.App.4th at p. 201; In re Michael D. (1996) 51 Cal.App.4th 1074, 1087.)
Moreover, the court must consider the child's wishes only to the extent they are ascertainable, which may be limited when children are too young to understand concepts such as adoption. (In re Joshua G., supra, 129 Cal.App.4th at p. 201.) Reports prepared for the section 366.26 hearing are an acceptable means of obtaining evidence as to the child's wishes. (Ibid.)
The section 366.26 report and addendum report do not discuss the minors' wishes directly. The social worker testified that she had not yet spoken to the minors. Nevertheless, we conclude that the juvenile court was informed about the minors' wishes to the extent they could be ascertained under the circumstances.
The oldest minor (I.C.) was seven years old at the time of the section 366.26 hearing, and the youngest (A.S.) was under two. In In re Joshua G., supra, 129 Cal.App.4th 189, where the minors were seven and five years old, the social worker concluded that the minors were too young to understand the concept of adoption. The appellate court found that the social worker had satisfied her duty to inform the juvenile court by providing the information she had about the minors' wishes. After noting that the court need not follow the minor's wishes unless he or she is over the age of 12, the appellate court affirmed the termination of parental rights even though the minors stated they wanted to live with their mother. (Id. at p. 201.) Here, too, we may infer that if questioned about adoption, the minors would probably not have understood the concept. But their wishes would not have been binding on the juvenile court, because they were too young to have a legal right to reject adoption. (§ 366.26, subd. (c)(1)(B)(ii).) Regardless of the minors' wishes, the juvenile court was required to act in their best interests. (§ 366.26, subd. (h)(1).)
The section 366.26 report, addendum report, and prior reports contained evidence that the minors had adjusted well to the caretakers' home and had bonded with the caretakers and their biological children. The section 366.26 report and addendum report did not contain evidence that the minors wished to be in a different placement. Given the minors' young ages, there was sufficient information to permit the juvenile court to carry out its obligation to consider the minors' wishes. Mother has shown no error in this regard.
The orders terminating parental rights and ordering a permanent plan of adoption for the minors are affirmed.
We concur: NICHOLSON , Acting P. J. HULL , J.