Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County. Jamileh Schwartzbart, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.), Super. Ct. No. 04CEJ300087.
Elaine Forrester, under appointment by the Court of Appeal, for Defendant and Appellant.
Dennis A. Marshall, County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
Before Vartabedian, Acting P.J., Wiseman, J., and Cornell, J.
OPINION
INTRODUCTION
On May 4, 2004, the Fresno County Department of Children and Family Services (department) filed a petition against appellant, Debbie M., alleging that Derek, then 3 years old, and two siblings came within the provisions of Welfare and Institutions Code section 300, subdivisions (b) and (g). On September 18, 2006, the juvenile court found Derek’s two siblings were adoptable and terminated parental rights of the mother and father. The court continued the matter as to Derek. On December 4, 2006, the juvenile court found Derek was likely to be adopted and terminated the mother’s parental rights. On appeal, Debbie M. contends there was insufficient evidence to support the juvenile court’s finding that Derek was adoptable and that the order terminating her parental rights to Derek must be reversed.
Unless otherwise designated, all statutory references are to the Welfare and Institutions Code.
FACTS AND PROCEEDINGS
The original section 300 petition alleged that when Derek’s youngest sister was born in April 2004. she and Debbie M. tested positive for the presence of methamphetamine. This was Debbie M.’s second drug exposed infant. The court ordered Derek and his two siblings detained on May 5, 2004.
After mediation, Debbie M. submitted the matter on the section 300, subdivision (b) allegation. The department withdrew the section 300, subdivision (g) allegation. At the jurisdiction hearing, the court found the section 300, subdivision (b) allegation true. Debbie M. enrolled in a residential treatment program on May 6, 2004.
At the conclusion of the disposition hearing on July 7, 2004, the court ordered reunification services for Debbie M. The court authorized the department to place the children with Debbie M. on July 21, 2004. Debbie M. completed the treatment phase of the residential program on October 14, 2004. She was readmitted to the program on October 28, 2004, after testing positive for methamphetamine. Debbie M. and the children moved into transitional living housing and received family maintenance services after completing services in April 2005.
The department filed a section 387 petition on August 29, 2005 alleging that Debbie M. relapsed by using methamphetamine. The social worker reported this was Debbie M.’s second relapse within the past year. The social worker noted that after receiving nearly 18 months of services, Debbie M. had failed to maintain sobriety. The court ordered the children detained and placed in foster care on August 31, 2005. Debbie M. enrolled in a substance abuse treatment program but was discharged as of the social worker’s report of November 2, 2005, for excessive absences.
A Court Appointed Special Advocate (CASA) reported that Derek and his siblings were removed from his foster home in October 2005. Despite his positive placement, Derek was observed displaying serious anger and acting out on a regular basis.
The department filed an application on October 27, 2005 to suspend Debbie M.’s visits. The department filed a section 388 petition to suspend Debbie M.’s supervised visits with the children. On October 26, 2005, the court temporarily suspended Debbie M.’s visitation with the children. Following a contested hearing on November 3, 2005, the court suspended Debbie’s visits based on testimony from Derek’s therapist that he had difficulty separating from his mother. The court found the allegations of the section 387 petition true, return of the children to Debbie M. would create a substantial risk of detriment to the children’s safety, and reasonable services had been provided to Debbie M. The court terminated services to Debbie M.
Debbie M. filed a writ petition in this court in November 2005 (case No. F049195). On January 30, 2006, we denied the petition, affirming the orders of the juvenile court terminating reunification services and setting the matter for a termination hearing pursuant to section 366.26. The juvenile court ordered a sibling attachment study on February 15, 2006.
In the department’s initial report in February 2006, the social worker described all three children as “generally adoptable.” Derek, who was then almost five years old, was seeing a therapist. He was experiencing unhealthy emotional outbursts which lead to the recommendation by the department to suspend visitations with Debbie M. in November 2005. The only meeting the minors had with their mother was during two bonding study appointments in January 2006. The social worker believed, however, that Derek would be greatly harmed if his relationship with Debbie M. was terminated. The department sought a 60-day continuation of the case to further evaluate additional information from the bonding study and the reports of therapists.
A report from CASA filed on March 29, 2006, noted that it had witnessed the foster mother provide Derek with boundaries and guidance. Derek was observed displaying serious anger issues and tantrums violent to the point of harming himself and others. CASA recommended Derek change therapists because he was not progressing with his therapist. CASA described Derek as athletic and charming and noted he had regressed while in foster care. CASA begged “the court to understand that Derek is an otherwise normal little boy,” who does well in school and enjoys playing with children his age or older. CASA noted that while Derek loves his mother very much, she failed to consistently nurture and provide for him. CASA noted that Derek was about to turn five, so he had waited long enough for a loving, stable home.
The department filed a report in May 2006 recommending termination of parental rights and adoption for Derek’s siblings and long-term foster care for Derek. Debbie M. visited her children once in March 2006 and once in April 2006. Derek was happy to see his mother. At the time the report was prepared, the department was planning a team decision-making meeting to evaluate whether Derek required a higher level of care than placement in a foster home.
A report from the California Psychological Institute dated July 11, 2006, concluded that the children’s relationship with one another would be greatly harmed if sibling relationships were terminated. This conclusion was based on the sibling bonding study. According to the department, the same bonding study concluded Derek had a substantial positive relationship with his mother, such that he would be greatly harmed if the parent/child relationship was terminated.
The department filed an addendum report on July 24, 2006, recommending a permanent plan of adoption for Derek with the termination of Debbie M.’s parental rights. Debbie M. failed to attend a scheduled visit with Derek on May 15, 2006, because she was in jail. The therapist, who conducted the bonding study, prepared an addendum to her report noting that if reunification services were not successful, adoption would be in Derek’s best interests.
Throughout the proceedings, Derek’s father remained unknown.
An addendum report filed by the department on September 4, 2006, noted a decrease in Derek’s behavioral problems. The social worker stated that Derek needs stability and permanence which was being provided in his current placement. Derek’s care providers were interested in adopting him, but requested additional time to make a final decision because of the relatively short time Derek had stayed with them. The social worker consulted a risk adoption coordinator to determine the availability of families to adopt Derek who told the social worker there were families available that would be interested in adopting him.
The section 366.26 hearing for Derek commenced on September 11, 2006, and was continued several times thereafter. Derek’s therapist for the prior five months, Kerri Freeman, had also conducted the earlier bonding study. Freeman explained that Derek’s behavior was much improved. Earlier, Derek was angry and would act out against himself and others. He would scratch himself and throw extreme tantrums. Freeman described Derek as smart and socially capable of interacting. Derek forms good relationships with adults. One tantrum was triggered by a visit with his mother.
After therapy, Derek gained insight into his anger and his tantrums and was making an effort to control his acting out behaviors. Derek was able to calm himself and was not harming himself. He could stop himself. His foster parents believed Derek was doing wonderfully. The foster parents were comfortable with Derek in their home. Freeman thought Derek was adjusting well in the foster parents’ home.
Freeman acknowledged that in her bonding study dated February 7, 2006, she concluded Derek would be greatly harmed if his relationship with his mother was terminated. At that time, however, Freeman had not been informed that reunification services to Debbie M. had been terminated. Freeman testified that now Derek’s well-being would best be promoted by adoption rather than a continuing relationship with Debbie M. or even his siblings. Freeman explained that after becoming Derek’s therapist, she saw him react negatively to his mother’s instability. Derek would respond negatively to Debbie M.’s visits. Derek’s current symptoms did not compare to the severity of his earlier symptoms.
Freeman believed that Derek’s behavioral prognosis would continue to improve if things were not disrupted. Even if Derek is moved, Freeman believed he had gained insight and it is unlikely his behavior will ever become as bad as it had been.
Tracy Anderson, a social worker, testified that Derek’s worst behaviors had improved after his visits with Debbie M. were suspended in October 2005. Anderson stated that Derek was generally adoptable because he was five years old, physically healthy, and developmentally on target. Derek’s behaviors were Anderson’s only concern, and there was “a great decrease in those behaviors.” Derek was able to form positive attachments. Anderson noted Derek was very smart and loveable. Anderson described Derek as “very much adoptable at this point.” Anderson concluded that Derek was likely to be adopted.
The department prepared an addendum report on November 3, 2006 again recommending Derek’s adoption and termination of Debbie M.’s parental rights. Debbie M. visited Derek on September 27, 2006. At the beginning of the visit, Derek approached his mother slowly, smiled at her, and hugged her. Debbie M. was very affectionate during the visit. Derek left with his foster mother willingly and appeared to be in a good mood.
Derek’s care provider reported that in weeks prior to the report, Derek acted out at home and at school. In one incident, Derek spit over a bathroom counter and mirror. The week prior to the interview, however, the care provider reported that Derek’s behavior at home and school had improved. Derek’s therapist noted Derek had shown both progress and a reduction in his symptoms as of October 2006. The therapist believed Derek needed placement in a stable environment to meet his needs. The social worker concluded that Derek was generally adoptable and that continued services and therapy for him would reduce his symptoms. The foster parents and therapist reported a “significant decrease” in Derek’s behaviors.
On December 4, 2006, after several continuances, the juvenile court heard the final portion of section 366.26 hearing. Debbie M. failed to appear. The court denied a motion by Debbie M.’s counsel to again continue the hearing. After listening to the argument of counsel, the court noted it had reviewed the testimony and took judicial notice of the entire case file. The court found by clear and convincing evidence that it was likely Derek will be adopted. The court noted Derek was only five years old, physically healthy, and there had been a decrease in his troublesome behaviors. Derek was also able to form positive attachments. The court stated it had considered two proposed exceptions to adoption in section 366.26, subdivisions (c)(1)(A) [minor would benefit from continued relationship] and (c)(1)(E) [substantial interference with minor’s sibling relationships]. The court found that the benefit to Derek of a permanent home through adoption outweighed any detriment or harm Derek would suffer from the absence of a continued relationship with his mother or with his siblings. The court terminated the parental rights of Debbie M. and any unknown father and all persons claiming to be Derek’s father.
DISCUSSION
Debbie M. contends there was insufficient clear and convincing evidence to support the juvenile court’s finding that Derek is adoptable. In support of her argument, Debbie M. focuses on Derek’s poor behavior with his care provider and at school shortly before the termination hearing. Although the juvenile court must make its adoptability finding by clear and convincing evidence (§ 366.26, subd. (c)(1)), the “clear and convincing” standard of proof is not a standard for appellate review. (Crail v. Blakely (1973) 8 Cal.3d 744, 750). The sufficiency of evidence to establish a given fact, where the law requires proof of the fact to be clear and convincing, is primarily a question for the trial court to determine, and if there is substantial evidence to support its conclusion, the determination is not open to review on appeal. (Ibid.) In this case, there was substantial evidence that Debbie M.’s five-year-old son was likely to be adopted. Derek was described by CASA as an athletic and charming boy, who does well in school and enjoys playing with children his age or older. In March of 2006, Derek was engaged in tantrums and displaying behavior that was potentially a threat to himself or to others. By the time of the termination hearing, in contrast, Derek had spit on bathroom surfaces and had been placed in time-outs in school. Just prior to the final addendum report from the department, these behaviors had abated. Derek had made progress in therapy and was described by the social worker as generally adoptable.
Debbie M. focuses only on Derek’s negative behaviors, which were greatly decreased by the time of the termination hearing. Debbie M. almost completely fails to note Derek’s positive and charming qualities. To the extent we may draw inferences from the record, we may do so only as to those legitimate inferences which uphold the decision of the trial court. (In re Laura F. (1983) 33 Cal.3d 826, 833.) We view the evidence in the light most favorable to the trial court’s judgment and in assessing the evidence, appellate courts do not reweigh it. (In re Shelley J. (1998) 68 Cal.App.4th 322, 329.) Where there is a conflict in the evidence, we indulge all reasonable inferences in support of the trial court’s finding. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378; In re Joshua H. (1993) 13 Cal.App.4th 1718, 1728.)
The issue of adoptability posed in a section 366.26 hearing focuses on the dependent child, e.g., whether his or her age, physical condition, and emotional state make it difficult to find a person willing to adopt. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) It is not necessary that the child already be in a potential adoptive home or that there be a proposed adoptive parent “waiting in the wings.” (In re Jennilee T. (1992) 3 Cal.App.4th 212, 223, fn. 11.) All that is required is clear and convincing evidence of the likelihood that adoption will be realized within a reasonable time. (In re Zeth S. (2003) 31 Cal.4th 396, 406.)
Appellant cites In re Asia L. (2003) 107 Cal.App.4th 498 (Asia L.) and In re Brian P. (2002) 99 Cal.App.4th 616 (Brian P.) for the proposition that the social worker’s conclusion alone is insufficient to support a finding of adoptability. In Asia L., unlike this case, the children presented ongoing emotional and psychological problems that made adoption problematic. The children in Asia L., unlike Derek, failed to show significant progress with their behavioral problems. (Asia L., supra, 107 Cal.App.4th at pp. 510-512.) In Brian P., supra, 99 Cal.App.4th at page 624, the social worker’s report consisted of only conclusory statements that the child had been approved for adoptive services. The likelihood of adoption was not mentioned. (Ibid.)
We find Asia L. and Brian P. factually distinguishable from the instant action. The social worker’s conclusion that Derek is generally adoptable is supported not only by evidence of improved behavior as noted by his care giver and school, but by the independent observations of his therapist. The CASA report emphasized that Derek was a “normal little boy.” Derek had many positive qualities, including the ability to bond with others his own age as well with adults. Derek had formed bonds with his siblings, was healthy, developmentally on target, smart, and loveable.
Derek had been in his current foster home since May 19, 2006, and his current care providers were interested in a plan of adoption but sought more time to evaluate this decision, given the relatively short time Derek had been in their home. The social worker had consulted a risk adopt coordinator, who informed the social worker there were families available that would be interested in adopting Derek and he was on a statewide adoption database.
Unlike the Asia L. or Brian P. cases, there was very substantial evidence adduced from multiple observers, including testimony from the section 366.26 hearing on September 11, 2006, that Derek was adoptable. Indeed, the section 366.26 hearing had been continued on numerous occasions for social workers, therapists, CASA, and the juvenile court to evaluate the issue of Derek’s adoptability. This process was not easy, but it was done carefully and thoughtfully.
Once reunification services are ordered terminated, the focus shifts to the needs of the children for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) If, as in this case, the children are likely to be adopted, adoption is the norm. Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides a compelling reason for finding that termination of parental rights would be detrimental to the child. (In re Celine R. (2003) 31 Cal.4th 45, 53.)
Although section 366.26, subdivision (c)(1) acknowledges termination may be detrimental under specifically designated circumstances, a finding of no detriment is not a prerequisite to the termination of parental rights. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) It is the parent’s burden to show termination would be detrimental under one of the exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) Thus, when a juvenile court rejects a detriment claim and terminates parental rights, the appellate issue is not one of substantial evidence but whether the juvenile court abused its discretion. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) On review of the record, we find no merit to the parent’s arguments and conclude the superior court did not abuse its discretion.
DISPOSITION
The order terminating parental rights is affirmed.