Opinion
A156657
09-20-2019
In re Daniel E., a Person Coming Under the Juvenile Court Law. HUMBOLDT COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. A.E. et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. JV170245)
The parents of two-year-old Daniel E. appeal from the juvenile court's order terminating their parental rights. Both parents assert there was insufficient evidence to prove Daniel is adoptable. Substantial evidence supports the court's finding of adoptability, so we affirm.
BACKGROUND
The history of this proceeding from Daniel's birth in November 2017 through the six-month review hearing at which the court set a permanency planning hearing is summarized in In re Daniel E. (Jan. 25, 2019, A155584) [nonpub. opn.], which we incorporate here by reference. At the permanency planning hearing held February 22, 2019, the court found Daniel to be an adoptable child and terminated parental rights. Here, we will focus on the evidence before the court when it made those rulings.
Daniel was born prematurely in November 2017 with drugs in his system and exhibiting symptoms of drug withdrawal. He was diagnosed with congenital torticollis, congestive heart failure, pulmonary edema and tachycardia, with indications of possible congenital cataracts or neuropathy. Daniel's health improved thereafter and he was discharged from the NICU. By January 2018, he was gaining weight, regulating his temperature, growing stronger, and responding to medication. Daniel's pediatrician stated he would treat Daniel as a normal infant if his progress continued. By February 2018, Daniel's pediatric neurologist reported there was no evidence of nystagmus, strabismus or seizures, and the baby's condition was sufficiently stable for supervised visits. By May 2018, when he was six months old, Daniel was at the five-month developmental stage despite being born over four weeks premature. He was "laughing, beginning to use sounds, attempting to crawl, maintaining eye contact, grasps fingers, 'talks to himself' when prone and trying to crawl." He also had recovered from a bout of viral meningitis.
A twisting of the neck that causes the head to be in an abnormal position. (See Infant Torticollis <https://kidshealth.org/en/parents/torticollis.html> [as of Sept. 18, 2019]; Evid. Code, §§ 452, subd. (h), 454.)
By August 2018, Daniel could support himself sitting up, stand with assistance, and eat solid foods. Further tests and scans were to be conducted, but a neurological examination disclosed no signs of brain damage or other abnormality except for torticollis. Daniel's vision was improving. His ophthalmologist believed he would not need glasses and, although Daniel's optical nerves did not appear completely normal, there did not appear to be severe atrophy. Daniel still had left-sided neuromuscular deficits, but he was continuing with physical and occupational therapy and showing significant improvements. His medical records reported "[l]ow concerns that infant's episodes of body movements/arching are due to a severe form of epilepsy such as infantile spasms since this typically leads to a regression in development."
The reports for the February 22, 2019 permanency planning hearing stated Daniel was learning to walk with his walker. The foster parents reported that he continued to improve in physical therapy. He was "a very happy baby," " 'well, frisky, and happy,' " and "very inquisitive and curious about his surroundings." A new neurological assessment was conducted in November 2018, but the social worker had not yet received the neurologist's report. A "Health and Education Passport" dated January 15, 2019, detailed Daniel's medical history from birth and indicated no significant remaining health, developmental or functional concerns other than torticollis.
Daniel's foster home was not a concurrent placement, but a maternal great uncle in San Diego County (Uncle) wanted to adopt him. Uncle and his ten-year-old son travelled to Humboldt to meet Daniel in July 2018 and again in November. According to the report for the permanency planning hearing, Uncle was "willing and able to provide permanency for Daniel and he has the resources to provide quality care to meet all of Daniel's needs. . . . As of this writing, [Uncle] is nearing completion with the Resource Family Approval process in San Diego County. His home has been approved for placement, and as of this writing he needs to complete additional classes to be approved as a Resource Family Home. [Uncle] has a son whom [sic] he shares custody with his ex-wife. His son appears to be well cared for and well mannered. . . . [Uncle] expresses not wanting to do this because he has to, but doing it out of the goodness of his heart." A transitional visit was scheduled for early January, but had to be rescheduled to early February due to Uncle's work commitments. The Humboldt Country Department of health and human services anticipated Daniel would be placed in Uncle's home by late February or early March 2019.
The supervising social worker provided an adoption assessment addendum with the following evaluation. "Daniel is a happy, loveable baby with a few minor health considerations. It is possible that he may need some extra care as he grows u[p]. He is an adoptable child and he should be placed in his permanent placement as soon as possible so that he can develop a bond with his permanent care providers. The maternal great-uncle has expressed and demonstrated his willingness to follow through with placement of Daniel. It is anticipated that Daniel will be placed with his uncle in the near future [and] that the uncle would be able to adopt Daniel if parental rights are terminated." The addendum concluded: "Daniel is a generally adoptable child who needs to be raised in a loving, permanent and stable home environment. The Department has identified a potential permanent placement with a relative but the child has not been placed in the relative's home as of the writing of this report. Adoptions supports the Department's recommendation that the court enter the findings and orders terminating parental rights at this time, and recognize that the child will be transitioned to his adoptive father."
No further evidence was introduced at the permanency planning hearing. Both parents argued the Department failed to prove Daniel was adoptable. Father also objected to the sufficiency of the adoption assessment. Daniel's counsel and the Department argued the evidence established that Daniel was generally adoptable and urged the court to terminate parental rights and free the child for adoption. As Daniel's counsel put it, "[T]he fact that, yes, the child does have medical issues, it is not unique to juvenile dependent children and it is not something that automatically would disqualify a one-year-old child from being adopted." The Department elaborated on the same theme: "As it relates to adoptability, the Court, in looking at the child's health issues, we really only look at that if we were looking at a specifically adoptable child. In this case, we are not. Daniel is generally adoptable. That's what is opined on Page 4 of the adoption assessment. Yes, he's had some complications, but due to his age and his general well-being, the expert in the field, the adoption social worker and actually in this case the adoption social worker supervisor, has opined that he is generally adoptable."
The parents also argued the parental and sibling bond exceptions to termination applied, but neither raises those points on appeal.
The Department informed the court that, although Uncle seemed not to be following through with visitation or the Resource Family Approval process, "the social worker has found a concurrent home if the uncle does not follow through. So there is a Plan B. And there are families that are willing to adopt Daniel."
The court found by clear and convincing evidence that Daniel was adoptable and terminated both parents' parental rights. This appeal is timely.
DISCUSSION
I. Legal Standards
The juvenile court may terminate parental rights only if it determines by clear and convincing evidence that it is likely the child will be adopted within a reasonable time. (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1204.) The issue of a child's adoptability "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.) While it is not necessary that the child already be in a prospective adoptive home or that there be a proposed adoptive parent " 'waiting in the wings,' " "[u]sually, the 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; In re Asia L. (2003) 107 Cal.App.4th 498, 510.) Alternatively, evidence of " 'approved families willing to adopt a child of [this] 'age, physical condition, and emotional state' " can be used to evaluate the likelihood of the child's adoption. (In re Jerome D., supra, 84 Cal.App.4th at p. 1205; In re Jennilee T. (1992) 3 Cal.App.4th 212, 224-225 . . . [finding a likelihood of adoption where the social worker had identified one family within the foster care system and three families outside the system, in addition to a potential relative, who were all willing to adopt a child with potential neurological problems and all the attendant risks]; In re Asia L., supra, 107 Cal.App.4th at p. 510; In re R.C. (2008) 169 Cal.App.4th 486, 493-494.)
"We review the factual basis of a termination order to determine whether the record contains substantial evidence from which a reasonable trier of fact could find a factual basis for termination by clear and convincing evidence." (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination we resolve all conflicts in favor of the prevailing party and draw all legitimate inferences to uphold the order. If more than one inference can reasonably be deduced from the facts, we are without power to substitute our deductions for those of the trier of fact. (In re Jason L., supra, at p. 1214.)
II. Analysis
The juvenile court's finding that Daniel is adoptable is supported by substantial evidence. Daniel might need extra care as he grows up, but he is a "mellow, easy baby who loves socializing with new kids and smiles a lot," a "happy, loveable baby with a few minor health considerations," " 'well, frisky, and happy,' " and "very inquisitive and curious about his surroundings." Despite serious medical concerns at birth Daniel exhibits no significant developmental delays, evidence of brain damage, or neurological problems other than torticollis. Mother complains the permanency planning report failed to adequately evaluate Daniel's medical and developmental status, but, if so, those issues were adequately addressed in the "Health and Education Passport" appended to the Department's report.
Mother's brief fails to cite or discuss the report. --------
The supervising adoptions social worker opined that Daniel is a generally adoptable child and, although the maternal uncle's commitment was uncertain, the Department informed the court it had located at least one other family that was interested in fostering and adopting Daniel. "Usually, the 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." (In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.) On this record, there is no basis to disturb the court's finding of adoptability.
DISPOSITION
The order terminating parental rights is affirmed.
/s/_________
Siggins, P.J. WE CONCUR: /s/_________
Fujisaki, J. /s/_________
Petrou, J.