Opinion
E068240
09-27-2017
In re A.V. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. L.V., Defendant and Appellant.
Elena S. Min, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. J262092 & J262093) OPINION APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes, Judge. Affirmed. Elena S. Min, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
Defendant and appellant L.V. (mother) appeals from the juvenile court's order terminating her parental rights as to her son S.V. (born 2007) and daughter A.V. (born 2010). Mother argues that the order must be reversed because substantial evidence does not support the juvenile court's finding that the children are adoptable. We disagree, and affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
The present dependency matter was initiated in August 2015, when plaintiff and respondent San Bernardino County Children and Family Services (CFS) received a referral alleging caretaker absence and incapacity, and inappropriate sexual behavior by A.V. In May 2015, mother was incarcerated, and the children's father (father), who is not a party to this appeal, left both children with the maternal grandmother, but later returned for A.V. Sometime later that summer, father was also incarcerated, and left A.V. in the care of a female friend. In August 2015, the friend contacted the maternal grandmother, stating that father had left A.V. with her without any provisions; the maternal grandmother picked up A.V. and took her to her home.
Subsequently, the maternal grandmother took A.V. to the doctor for a physical examination, in preparation for enrolling her in kindergarten. During the examination, A.V. reported that she had been inappropriately touched by father's friends, and that his friends "'took baths with her without clothes on.'" In a later interview with a social worker, in addition to sexual abuse, A.V. reported that she had been living in a motel with father, and that father and his girlfriends would hit her with a belt.
In an interview with the social worker, S.V. reported that when he was living with father, they would stay in a motel, except when they did not have enough money so they were "'in the cold.'" S.V. denied any physical or sexual abuse.
The social worker interviewed mother at the maternal grandmother's house on September 10, 2015; mother had been released from prison two weeks earlier, and was staying with the maternal grandmother. A.V. and S.V. both expressed a desire to stay with their mother at the maternal grandmother's house.
In dependency petitions filed pursuant to Welfare and Institutions Code section 300 on September 16, 2015, CFS alleged the parents both had ongoing substance abuse problems, criminal histories, and had engaged in domestic violence; father had abandoned the children with a friend, and the parents' whereabouts were unknown; mother had two prior dependency cases—the first relating to two older half siblings of A.V. and S.V., the second relating to all four children—and had failed to reunify with the children the second time; father had a prior dependency case and had been offered family maintenance services; and A.V. had been sexually abused by an unknown perpetrator while she was in father's care in August 2015, and on previous occasions.
Further undesignated statutory references are to the Welfare and Institutions Code.
The juvenile court detained the children and subsequently sustained the dependency petitions, finding all the allegations true except for those regarding the parent's whereabouts. The children were placed in foster care, and the juvenile court ordered reunification services for both parents.
In a status review report filed April 4, 2016, CFS recommended that the children remain in their current foster home placement. S.V., who was in third grade, had "not been listening" in school, but "after the caregiver had a talk with him," his behavior improved. A.V. was in kindergarten, and she, too, had demonstrated improved behavior. The social worker observed that both children had been "doing well" in the "stable and loving home environment" of the caregiver and her family. CFS reported that the concurrent plan for the children was adoption by their current caregiver and her husband. At a review hearing on April 7, 2016, the juvenile court ordered an additional six months of reunification services for the parents and continued out-of-home placement for the children.
In a status review report filed September 13, 2016, CFS recommended terminating reunification services and setting a section 366.26 hearing. The parents had failed to comply with their case plans in various respects; among other things, mother was incarcerated, and father's whereabouts were unknown. The social worker observed that the children were "doing well in their placement," and "their basic, individual and emotional needs" were "being met by the caregiver and the family." Both children were adjusting to their placement, and had "developed a bond with the caregiver and her family." A.V. was in first grade, and was doing well, and enjoying school. S.V. was in the fourth grade, and was "doing better in school"; he was listening and completing his homework and class assignments, and had "discontinued being disruptive . . . ." Both children presented "as happy and content," did not "appear to display any mental or emotional concerns at this time," and were receiving therapeutic services to address their past traumas. Both children expressed that they would like to visit the parents but continue to live with their current caregiver. A.V. was "very alert and wants to overhear conversations in relation to her due to her overwhelming fear of being returned to the father and/or mother."
On November 2, 2015, the juvenile court discontinued the parents' visitation with the children, based on the recommendation of the children's therapist that visitation was detrimental to them. The court's minutes note that the children "continue to excel in their caregiver's home and in school," that they both "enjoy being with their current caregiver and her family," and that they both "have developed a sense of security, comfort, and love from their placement."
In the section 366.26 report, filed on January 24, 2017, the social worker described S.V. as a "talkative and humorous 9 year old," and A.V. as "a sweet and easy-going 6 year old." Their caregiver "shared that they are well behaved and good kids at home." A.V. was doing well academically. S.V. was "functioning with low to average academic performance," and he "likes to be the class clown, is easily distracted, and likes to interrupt the class." Nevertheless, his behavior in school was "much better" than the previous year, and he had demonstrated that he was responsive to discipline and incentives for good behavior.
The children expressed that they were sad they could not return to their mother. Both children, however, "really love living with their foster parents and seem to have some peace with the fact that they can remain in their foster home who make sure they always have food." The social worker observed that the children "fit in well in the home," noting that the parents are also adopting two other children through Riverside County. S.V. and A.V. referred to the prospective adoptive parents, who had been their caregivers for over 15 months, as "Miss [first name]" and "Mr. [first name]," but A.V. had asked them "if it was ok for her to call them mom and dad." The prospective adoptive parents "describe a close and loving relationship with the children." And they "take the children's cue with what they are ready for in terms of affection and respect the children's level of acceptance of them as their prospective adoptive family"; the family "show[s] affection with hugs every night and when they leave each other," and A.V. had "notice[d] that they also give kisses in their family and asked if she could have a kiss."
In March 2017, CFS filed a supplemental report, reporting that the children "looked well and healthy," and that they were "happy, energetic, and content in the home" of their prospective adoptive parents. The social worker observed that "[t]he children are bonded to the prospective adoptive parents," who "have their best interest at heart." The prospective adoptive mother shared that both children had been growing more affectionate: "[S.V.] gives more hugs and will also say, 'I love you, you're the best mom'"; A.V. "will give prospective adoptive parents kisses and says 'I love you.'"
When interviewed, S.V. expressed to the social worker that things were going well in the home, and he loves being in the care of the prospective adoptive parents. He specifically stated that he wanted to be adopted by them, and denied ever telling his attorney that he did not want to be adopted. A.V. became emotional during her interview; the social worker observed that "[w]henever there is talk of her parents she appears to relive some trauma." Nevertheless, she, too, was able to express that she was happy about being adopted by the prospective adoptive parents.
In an interim review report filed May 2, 2017, CFS reported that "The children have adapted and continue to excel in their stable home environment." S.V. had begun to act out in school again, as "a result of the brought on fear that he will be returned to the parents' care." A.V., too, expressed "great fear of seeing or returning to her biological parents," causing her 'great distress"; she "becomes very angry and states that she wants to stay where she is and does not even want to see either of her biological parents." The social worker observed that "[t]he adoption process is seen as very positive by the children."
On May 4, 2017, the juvenile court found clear and convincing evidence that the children were likely to be adopted, and terminated all parental rights.
II. DISCUSSION
Mother contends that no substantial evidence supports the juvenile court's finding that the children are adoptable. Her contention is without merit.
CFS had the burden of proving the children were adoptable. (In re Gregory A. (2005) 126 Cal.App.4th 1554 ,1559-1561.) "Although a finding of adoptability must be supported by clear and convincing evidence, it is nevertheless a low threshold: The court must merely determine that it is 'likely' that the child will be adopted within a reasonable time." (In re K.B. (2009) 173 Cal.App.4th 1275, 1292.) "Review of a determination of adoptability is limited to whether those findings are supported by substantial evidence." (In re Carl R. (2005) 128 Cal.App.4th 1051, 1061.) In reviewing for substantial evidence, "[w]e do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. Rather, we draw all reasonable inferences in support of the findings, consider the record most favorably to the juvenile court's order, and affirm the order if supported by substantial evidence even if other evidence supports a contrary conclusion. [Citation.] The appellant has the burden of showing the finding or order is not supported by substantial evidence." (In re L. Y. L. (2002) 101 Cal.App.4th 942, 947.)
A finding of general 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, italics omitted.) Even if an adoptive family is not readily available, the juvenile court may find a child generally adoptable. (In re I.I. (2008) 168 Cal.App.4th 857, 870.) A child's psychological, behavioral and developmental problems may make it more difficult to find adoptive homes, but do not necessarily prevent an adoptability finding. (Id. at pp. 870-871.)
A child who is not generally adoptable may be specifically adoptable, that is, adoptable "because a prospective adoptive family has been identified as willing to adopt the child." (In re Sarah M., supra, 22 Cal.App.4th at p. 1650.) "[T]he fact that a prospective adoptive family has been identified is an indication that the child is likely to be adopted within a reasonable time. '"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 I.I., supra, 168 Cal.App.4th at p. 870.)
The record amply supports the juvenile court's conclusion that S.V. and A.V. are adoptable. They are specifically adoptable, because a prospective adoptive family—their caretakers since 2015—has been identified as willing to adopt them. With respect to general adoptability, there is nothing about their age, physical condition, or emotional state that would make it difficult to find a person willing to adopt them. Both the social worker and their prospective adoptive parents describe them as healthy, happy, and generally well behaved children who, despite the traumas of their past, have demonstrated the ability to form new, healthy bonds. Moreover, there is a prospective adoptive family that is willing to adopt them, demonstrating that any challenges they may present for their caretakers or their teachers are not of a magnitude that would render it unlikely for them to be adopted in a reasonable time, either by the currently identified prospective adoptive parents, or by some other family. (In re I.I., supra, 168 Cal.App.4th at p. 870.)
Mother's arguments to the contrary depend, in large part, on interpretations of the record that are uncharitable to the point of simply being inaccurate. For example, she characterizes the social worker's observation that the children were sad about not living with mother, and tended to refer to the prospective adoptive parents by their first names, as signs that they "did not accept the caregivers as their prospective adoptive parents." She fails to acknowledge that the children have expressed, in no uncertain terms, that they love living with their prospective adoptive parents, and want to be adopted by them. Mother asserts that the prospective adoptive parents were "not affectionate" with the children and treated them differently than other family members. This assertion is based, apparently, on the social worker's observation that the prospective adoptive parents appropriately respected the children's boundaries regarding physical displays of affection. Mother ignores, however, the further observations of the social worker, repeated many times, that the home provided by the prospective adoptive parents is loving and nurturing, fulfilling the children's physical and emotional needs. The record also demonstrates that, as the children grew more comfortable with their caretakers and began to recover from the traumas they suffered while in the custody of their parents, they grew more comfortable with physical displays of affection, giving more hugs and kisses, and saying "I love you" to the prospective adoptive parents. Even viewing the record in a neutral light, let alone in the required manner most favorable to the judgment, we would reject mother's characterizations of the evidence.
Mother's arguments from legal authority are also unpersuasive. In particular, her reliance on In re Jerome D. (2000) 84 Cal.App.4th 1200 (Jerome D.) is misplaced. In that case, the court of appeal found it "clear" that the finding of adoptability had been based solely on the prospective adoptive parent's willingness to adopt, in light of scant consideration given in the adoption assessment to the factors regarding general adoptability, and known challenges regarding the child's physical condition and emotional state. (Id. at p. 1205.) Furthermore, the record demonstrated that the prospective adoptive parent, a former boyfriend of the child's mother, had a criminal history that included multiple convictions for domestic violence with the mother, committed in the presence of the child and siblings, and he had been "'listed as a perpetrator' with Child Protective Services" for emotionally abusing his nephews and niece. (Id. at p. 1203.) Nevertheless, the adoption assessment did not address the prospective adoptive parent's criminal and CPS history. (Id. at p. 1205.) In those circumstances, the court of appeal found the evidence of adoptability was not clear and convincing. (Id. at p. 1206.)
The circumstances of the present case are different than those of Jerome D. There is no evidence in the record that the prospective adoptive parents have any criminal or (negative) CPS history, or any other similar potential legal impediments to adoption. Moreover, as discussed above, the children are generally adoptable; the record strongly supports the conclusion that the children will be adopted within a reasonable time, most likely by the prospective adoptive parents, but if not, then by some other family. The reasoning of Jerome D. does not apply in this case.
III. DISPOSITION
The order appealed from is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MILLER
Acting P. J. SLOUGH
J.