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In Re De.D. et al., Persons Coming Under the Juvenile Court Law. v. A.D

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)


February 9, 2012

IN RE DE.D. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. YOLO COUNTY DEPARTMENT OF EMPLOYMENT AND SOCIAL SERVICES, PLAINTIFF AND RESPONDENT,
v.
A.D., DEFENDANT AND APPELLANT.

(Super. Ct. Nos. JV09-441, JV09-442)

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

In re De.D.

CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A.D., the mother of five-year-old De.D. and three-year-old Da.D., appeals from orders of the Yolo County Juvenile Court denying her petitions for modification and terminating her parental rights. (Welf. & Inst. Code, §§ 366.26, 388.)*fn1

On appeal, mother contends (1) denial of her modification motion seeking further reunification services was error, and (2) insufficient evidence supports the finding that the children were likely to be adopted. We shall affirm the orders.

FACTUAL AND PROCEDURAL BACKGROUND

Originating Circumstances

In September 2009, an off-duty Woodland Police detective observed Da.D. in the middle of a public street and De.D. seated on the curb. The detective saw an adult male grab, lift, shake, hit, and forcefully set down Da.D. before escorting the boys back to their house. The detective flagged down a police officer and the duo returned to the area. The adult male (later determined to be mother's boyfriend) was detained and arrested for felony child abuse. The children were located in the care of another adult male who had mental health issues and was unaware that he was supposed to be watching the children. Instead, the male believed an adult female, a known and avid heroin user who was not present, was supposed to be watching the children. Mother had not been seen since early that morning.

Petitions and Detention

In September 2009, petitions were filed alleging that mother failed to protect the children due to her substance abuse, failure to complete prior voluntary case plans, and present and past involvement with domestic violence. (§ 300, subd. (b).) The petitions also alleged that the children had been left with inappropriate caretakers and mother's whereabouts was unknown. (§ 300, subd. (g).)*fn2

In September 2009, the juvenile court found that there was a prima facie case for detention and made the appropriate findings and orders.

Jurisdiction and Disposition

At a jurisdictional hearing in October 2009, mother submitted to the petitions' allegations as slightly modified. The juvenile court sustained the allegations as modified. At a dispositional hearing in November 2009, the court continued the children's out-of-home placement and ordered mother to participate fully in family reunification services.

An early review to check on mother's progress was scheduled for February 3, 2010. At the review, it was reported that mother was doing well in residential treatment but had suffered a relapse.

Six-month Review

In reports for the May 2010 six-month review, the Yolo County Department of Employment and Social Services (the Department) recommended that family reunification services cease because mother failed to participate regularly and make substantive progress on her court-ordered case plan. Mother's counsel requested a contested hearing.

At the contested hearing in June 2010, the review reports were received into evidence. The social worker and mother testified. The juvenile court found that there was not a substantial probability that the children could be returned to mother within the statutory time frame. The court terminated services to mother and set a selection and implementation hearing for October 2010.

Selection and Implementation

The Department filed a selection and implementation report requesting a 90-day continuance to locate a prospective adoptive home. The juvenile court granted the request and continued the matter to January 2011.

In January 2011, the California Department of Social Services (CDSS) filed an adoption assessment addendum stating that the children's caretakers, who previously had been concerned whether they could provide for the children on a permanent basis, had since concluded that they could do so. The addendum found the caretakers suitable for adoption of the children. That same month, the Department filed a further selection and implementation report recommending termination of parental rights and adoption by the caretakers. The parents requested a contested hearing, which was set for April 2011.

Petitions for Modification

In April 2011, mother filed modification petitions (§ 388) requesting that the court change its orders ceasing her reunification services. The juvenile court found that the petitions stated a prima facie case of changed circumstances. Mother testified. The court denied the petitions and proceeded to the issue of termination of parental rights.

After receiving evidence and brief argument, the juvenile court stated it was prepared to terminate parental rights. The court referred the matter to a "consortium for children" for an evaluation of postadoption contact with the parents.

In June 2011, the juvenile court confirmed that the consortium had met with the parties and was working toward an agreement. The court terminated parental rights and freed the children for adoption.

DISCUSSION

I. Section 388 Petitions

Mother contends the juvenile court erred when it denied her section 388 petitions for additional reunification services. We are not persuaded.

A. Background

Mother's case plan, adopted in November 2009, required her to participate in individual counseling, parenting classes, drug testing, and an outpatient substance abuse treatment program.

Mother was incarcerated from October 2010 to January 2011. Thereafter, she was in a residential treatment program from January 27 to February 28, 2011, when she was medically discharged due to high blood pressure. Two to three weeks later, she began participating in a weekly "pretreatment" program until Medi-Cal funding was approved for an outpatient program. In April 2011, mother began attending thrice-weekly outpatient sessions that lasted two to three hours. In addition, mother attended Narcotics Anonymous meetings and obtained drug testing through the probation department.

Mother testified that she had obtained a Narcotics Anonymous sponsor the previous week and was working on the first of 12 steps. Mother conceded that she had "messed up the first time" she was offered services. This time, mother planned on "sticking to" her steps, her sponsor, and her support group; completing her outpatient program; and obtaining employment and residence.

At the conclusion of the hearing, the juvenile court stated: "The court is hopeful that the mother will continue her efforts for sobriety. That is very important first for her and for her family. [¶] But we're still early in that process. Even though the court believes and I accept the words that the minors' attorney has used that there is a--these are changing circumstances. They are changing circumstances in a positive way but they are not--there's more work to be done as evidence[d] by the fact Mom begins her outpatient treatment program this afternoon. [¶] Even if the court were to find there were changed circumstances, the evidence is clear that these boys are being well cared for where they are now. They have been there quite some time. They have a positive relationship with the caregivers, the foster parents, and there is stability where they are currently placed. [¶] So the court is going to deny the [section] 388 [petitions] for the reasons stated."

B. Analysis

A parent may bring a petition for modification of any order of the juvenile court pursuant to section 388 based on new evidence or a showing of changed circumstances.*fn3 "The parent requesting the change of order has the burden of establishing that the change is justified. [Citation.] The standard of proof is preponderance of the evidence." (In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.)

Determination of a petition to modify is committed to the sound discretion of the juvenile court and, absent a showing of a clear abuse of discretion, the decision of the juvenile court must be upheld. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.) The best interests of the child are of paramount consideration when the petition is brought after termination of reunification services. (In re Stephanie M., supra, at p. 317.) In assessing the best interests of the child, the juvenile court looks not to the parent's interests in reunification but to the needs of the child for permanence and stability. (Ibid.; In re Marilyn H. (1993) 5 Cal.4th 295, 309.)

A petition that alleges "changing," as opposed to "changed," circumstances effectively asks the court to delay the selection of a permanent home for a child to see if a parent, who has failed to reunify with the child, might be able to reunify at some future point. Granting such a petition does not promote stability for the child or the child's best interests. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) Mother's attempt to distinguish In re Casey D. on its facts does not suggest that this legal principle is somehow inapplicable to the present case.

In the heading of her argument, mother claims "substantial evidence supports the finding that [her] circumstances had changed." In the body of the argument, mother claims "the evidence showed that mother's circumstances had changed sufficiently to warrant granting her modification request." In the conclusion of this argument, mother argues "it was not too 'early in the process' to find that her circumstances had sufficiently changed to satisfy the first prong of the section 388 test."

Mother's contentions fail because they disregard the juvenile court's ruling. The court did not find that mother's circumstances had changed; had the court made that finding, it would have had no occasion to preface a portion of its discussion with the words, "if the court were to find there were changed circumstances." (Italics added.)

Mother's arguments that it was not "too early" to find changed circumstances, and that substantial evidence supported such a finding, simply establish that the court would have been entitled to make a different order. The arguments fail to identify any infirmity in the order actually made.

Elsewhere in her briefing, mother recognizes that the reviewing court "will not interfere unless the trial court exceeded the limits of legal discretion by making an arbitrary or patently absurd determination." However, mother does not contend the juvenile court's finding of "changing," as opposed to "changed," circumstances somehow exceeds the bounds of the court's legal discretion. For example, mother does not argue that she was too far along in her recovery process to support the court's finding that circumstances had not changed. Any such contention is forfeited. (E.g., People v. Hardy (1992) 2 Cal.4th 86, 150.)

In any event, the juvenile court's finding is well within the limits of its sound discretion. Mother had completed just one month of residential treatment and was not scheduled to begin outpatient treatment until the conclusion of the modification hearing. She was on the first of 12 steps of narcotics recovery. There is no suggestion that she had obtained employment or residence. This record amply supports the finding that mother's circumstances were changing but had not sufficiently changed. There was no abuse of discretion. (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319.) It is not necessary to consider mother's argument that insufficient evidence supports the juvenile court's finding that further reunification services were not in the children's best interests.

II. Order Terminating Parental Rights

Mother contends the order terminating parental rights must be reversed because it was based on insufficient evidence that the children were likely to be adopted within a reasonable time. We are not convinced.

A. Background

In October 2010, CDSS filed an adoption assessment that concluded the children were likely to be adopted. CDSS noted that the children were "very bonded" to their caretakers, but the caretakers had not committed to adoption. CDSS acknowledged that the children were considered "difficult . . . to place" because they were a "sibling group." However, CDSS was confident that a suitable family would be found if the current caretakers elected not to proceed with the adoption. CDSS recommended that the juvenile court order a permanent plan of adoption and continue the case 90 days to "locate an appropriate adoptive family."

In January 2011, CDSS filed an addendum to its October 2010 assessment. CDSS noted that, in the additional time allowed by the continuance, the caretakers had determined that they could commit to the adoption. CDSS recommended that the juvenile court terminate parental rights and order a permanent plan of adoption.

At the hearing in April 2011, the social worker testified that the caretakers had never expressed uncertainty regarding their desire to provide permanency for the children. Their sole concern was financial after the prospective father became unemployed. He later became employed and the couple could not "picture not having the boys in their home."

B. Analysis

"In reviewing the sufficiency of the evidence on appeal, we look to the entire record to determine whether there is substantial evidence to support the findings of the juvenile court. We do not pass judgment on the credibility of witnesses, attempt to resolve conflicts in the evidence, or determine where the weight of the evidence lies. Rather, we draw all reasonable inferences in support of the findings, view the record in the light most favorable to the juvenile court's order, and affirm the order even if there is other evidence that would support a contrary finding. [Citation.] When the [juvenile] court makes findings by the elevated standard of clear and convincing evidence, the substantial evidence test remains the standard of review on appeal. [Citation.] The appellant has the burden of showing that there is no evidence of a sufficiently substantial nature to support the order." (In re Cole C. (2009) 174 Cal.App.4th 900, 915-916.)

"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. The fact that the child is not yet placed in a preadoptive home nor with a relative or foster family who is prepared to adopt the child, shall not constitute a basis for the court to conclude that it is not likely the child will be adopted. . . ." (§ 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.) "[T]here must be convincing evidence of the likelihood that adoption will take place within a reasonable time." (In re Brian P. (2002) 99 Cal.App.4th 616, 624.) The fact that a prospective adoptive family is willing to adopt the minor is evidence that the minor is likely to be adopted by that family or some other family in a reasonable time. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.)

Mother contends the CDSS adoption assessment and addendum do not constitute sufficient evidence of adoptability.*fn4 She relies on In re Brian P., supra, 99 Cal.App.4th 616, which held a social worker's opinion is not sufficient by itself to support adoptability. (Id. at p. 624.) Brian P. explained that the juvenile court in that case "did not have the benefit of an adoption assessment report, which would have presented the kind of facts needed to support a finding of adoptability." (Ibid.) Here, in contrast, the juvenile court had the CDSS adoption assessment as well as the social worker's opinion; the court also knew that one prospective adoptive family was willing to adopt the children. Thus, the court could conclude that the children were likely to be adopted by that family or some other family in a reasonable time. (In re Lukas B., supra, 79 Cal.App.4th at p. 1154.)

"'[I]t is only common sense that when there is a prospective adoptive home in which the child is already living, and the only indications are that, if matters continue, the child will be adopted into that home, adoptability is established. In such a case, the literal language of the statute is satisfied, because "it is likely" that that particular child will be adopted.'" (In re K.B. (2009) 173 Cal.App.4th 1275, 1293.)

Mother relies on In re Jerome D. (2000) 84 Cal.App.4th 1200, in which an adoption assessment was prepared but held to be inadequate in that it failed to address the prospective adoptive parent's criminal and Child Protective Services history as required by statute. (Id. at p. 1205.) Here, in contrast, the assessment addendum stated that "[t]he potential adoptive parents reported no criminal or child abuse record."

Mother cites In re Jayson T. (2002) 97 Cal.App.4th 75 for the proposition that adoptability should not be based solely upon a caretaker's willingness to adopt. However, Jayson T. did not identify any other specific evidence that must be adduced before a juvenile court finds a child adoptable. Rather, Jayson T. held that where an adoptive placement fails during the pendency of an appeal, appellate counsel for the minor can raise the issue that the children are not adoptable. (Id. at pp. 87-91.) Jayson T. has since been disapproved on this point. (In re Zeth S. (2003) 31 Cal.4th 396, 413-414.)

Mother concedes that the caretakers ultimately chose to pursue the adoption, but she argues they "seemed" less than fully committed. (Citing In re K.B., supra, 173 Cal.App.4th at pp. 1293-1294.) However, as noted, the caretakers never expressed any uncertainty as to providing permanency for the children. The couple could not "picture not having the boys in their home." Their only hesitation was financial, in that the father had become unemployed; this concern was resolved when he obtained new employment. Mother's reliance on In re K.B. is misplaced. The adoptability finding is supported by substantial evidence. (In re Cole C., supra, 174 Cal.App.4th at pp. 915-916.)

DISPOSITION

The orders are affirmed.

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


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