Opinion
C089341
10-25-2019
In re R.L. et al., Persons Coming Under the Juvenile Court Law. EL DORADO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. T.H., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. SDP20170039, SDP20170040, SDP20170041)
Appellant T.H., mother of the three minors, appeals from the juvenile court's orders terminating her parental rights and freeing the minors for adoption. (Welf. & Inst. Code, §§ 366.26, 395.) She contends there was insufficient evidence to support the juvenile court's findings that the minors are adoptable. We shall affirm.
Further undesignated statutory references are to the Welfare and Institutions Code. --------
FACTUAL AND PROCEDURAL BACKGROUND
We limit our recitation of the facts to those necessary for resolution of the issue on appeal.
On October 31, 2017, the El Dorado County Health and Human Services (Agency) filed section 300 petitions on behalf of minor B.H. (age 11) and her half siblings R.L. (age 5) and T.L. (age 3), alleging the minors fell within the provisions of subdivisions (b), (c), (g), and (j) due to mother's untreated mental health problems, the minors' exposure to domestic violence, mother's emotional abuse of the minors, father B.L.'s untreated alcohol and drug abuse, and a prior dependency case wherein B.H. had been removed from mother's care for 13 months. The juvenile court sustained amended petitions in December 2017 and continued the disposition hearing for completion of mother's court-ordered psychological evaluations.
At the disposition hearing in March 2018, the juvenile court adjudged the minors dependent children and ordered reunification services for mother and B.L., the presumed father of minors R.L. and T.L. B.H.'s alleged father was not provided reunification services.
Mother was hostile and threatening to service providers and uncooperative with the Agency. She did not substantially engage in services and made minimal progress in therapy. She initially had two-hour supervised visits with the minors once a week but visits were later required to be therapeutically supervised due to her aggressive, hostile, and inappropriate behavior. Her visits with R.L. and T.L. were terminated in October 2018 following her disturbing and "escalating" behavior during a visit that traumatized the minors. Father B.L. was incarcerated. Reunification services were terminated on October 10, 2018. Mother's visitation with B.H. was subsequently terminated in December 2018 after mother declared visits with B.H. uncomfortable and ended a visit early.
The section 366.26 hearing took place on April 17, 2019. R.L. and T.L. had been in their current foster home since their detention in October 2017. B.H. had been placed with them initially but was now placed separately. Relatives had come forward to seek permanent placement of the minors, either of B.H. alone, or of R.L. and T.L together, but none were able to accept all three minors. The juvenile court found the minors adoptable and terminated parental rights.
Additional facts relating to each minor are included in our discussion.
DISCUSSION
Mother contends the orders terminating her parental rights must be reversed because there was insufficient evidence to support the juvenile court's findings that the minors are adoptable.
The Agency has the burden to establish, by clear and convincing evidence, that the minors are likely to be adopted within a reasonable time. (In re Chantal S. (1996) 13 Cal.4th 196, 210.) Thus, contrary to the Agency's assertion on appeal, mother's failure to object to the juvenile court's finding of adoptability does not forfeit the issue on appeal. (Ibid.; see also In re Brian P. (2002) 99 Cal.App.4th 616, 623.) Nonetheless, we find substantial evidence supports the juvenile court's finding that all three minors are likely to be adopted.
I
The Law
"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).) "Although a finding of adoptability must be supported by clear and convincing evidence, it [i.e., the determination that it is likely the child will be adopted within a reasonable time] is nevertheless a low threshold." (In re K.B. (2009) 173 Cal.App.4th 1275, 1292.)
Determination of whether a child is likely to be adopted focuses first upon the characteristics of the child; therefore, a finding of adoptability does not require that the child already be in a prospective adoptive home or that there is "a proposed adoptive parent 'waiting in the wings.' " (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) On the other hand, the fact that a prospective adoptive parent has shown interest in adopting a minor is substantial evidence the minor is likely to be adopted within a reasonable time, either by that parent or some other. (In re J.I. (2003) 108 Cal.App.4th 903, 911; In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154; Sarah M., at p. 1651.)
We review the juvenile court's finding on this issue 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, 869.) 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.) If so, "[i]t is irrelevant that there may be evidence which would support a contrary conclusion." (In re K.B., supra, 173 Cal.App.4th at p. 1292.)
II
Adoptability
A. Adoptions Assessment Report
As a preliminary matter, to the extent mother challenges the adequacy of the adoptions assessment reports, contending the reports lacked required information, she has forfeited the right to assert such deficiencies on appeal by failing to object to the reports at the hearing. (In re Crystal J. (1993) 12 Cal.App.4th 407, 411-412; In re Aaron B. (1996) 46 Cal.App.4th 843, 846; In re Urayna L. (1999) 75 Cal.App.4th 883, 886.) The section 366.26 social worker's reports were filed four months before the contested hearing and the addendum report was complete and filed two weeks before the contested hearing. Thus, mother was on notice of the reports' contents and alleged deficiencies, yet failed to object. Had she raised the alleged problems with the report in the juvenile court, the social worker could have cured the omissions in her testimony or the case could have been continued to permit completion of the report. (In re John F. (1994) 27 Cal.App.4th 1365, 1378.) Mother is not permitted to raise these alleged deficiencies for the first time on appeal.
B. Minor B.H.
1. Assessment
B.H. was reported to be healthy and developmentally on target. She was doing well academically, has a good imagination, and is described as smart and adaptable. She has been diagnosed with oppositional defiant disorder, but her therapist stated her related behaviors were not overt. Her disorder impacted her ability to get along with peers, as she needed to be "first" or "right" when interacting with them. She struggled with peer relationships and maintaining appropriate behavior, and tended to blame others for her actions. B.H. met with her therapist weekly and was working on increased insight into responsibility and accountability. B.H. also met with a family specialist/WRAP worker weekly and was working on positive peer relationships.
B.H. had been in four different placements in the two years since her removal from mother. Although her struggles with peer interaction had contributed to two of her placement changes, her initial placement change was made to separate her from her half siblings. She did not have a positive relationship with her half siblings R.L. and T.L. A subsequent placement change was in response to the caretaker's health issues. At the time of the section 366.26 hearing, she was back in the home of a previous caregiver who was "happy to have B.H. back in her home."
The Agency had assessed B.H. as adoptable. Relatives had come forward and expressed an interest in adopting her. B.H. indicated she wished to be placed in the home that had been identified for her adoption and no longer wished to have visits with mother beyond a goodbye visit.
2. Analysis
The juvenile court expressly found B.H. "clearly adoptable." The court stressed that she is healthy and doing well academically. The court acknowledged B.H.'s behavior struggles but noted that she was working with providers and making improvements. The evidence supports the juvenile court's conclusion.
Although mother argues correctly that B.H. is at the upper end of the age range for adoptability, 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 1649; In re Elise K. (1982) 33 Cal.3d. 138, 144-145.) The court found B.H.'s behavior problems to be minimal and improving, and several relatives had come forward and expressed the desire to adopt the minor, further evidencing that the minor's individual characteristics (aside from age) did not make her difficult to place.
B. R.L. and T.L.
1. Assessment
Minors R.L. and T.L. were considered as a sibling set. Both minors are healthy with no significant medical issues.
Five-year-old R.L. appeared to have some delays in her verbal communication and self-help skills. In January 2019, four months before the hearing, she was reported to still have frequent toilet training accidents and had been referred for an assessment to rule out possible autism. The diagnostic impressions did not include autism, but the assessment was still being reviewed to determine if R.L. was eligible for other services. The assessment had been delayed because mother had refused to sign the necessary consent form for the release.
R.L. was described as smart, but her unwillingness to perform tasks when asked impacted her scores. Her diagnoses of post-traumatic stress disorder and developmental trauma impacted her educational process and were being addressed in an individualized education plan which allowed for an increased staff to student ratio. Her peer interaction and motor skills were assessed as normal. In the past, she had instigated "extreme" fights with T.L.--something mother had encouraged--but that behavior had greatly reduced, especially since visitation with mother had stopped.
R.L. was receiving mental health services and met with her therapist on a weekly basis. She had made substantial progress in her ability to be redirected and use better language, again, with "dramatic improvement" since visitation with mother had stopped.
Three-year-old T.L. appeared developmentally appropriate in regard to her speech and vocabulary but became overstimulated in public places. She was still in the process of being assessed for possible autism or developmental delays. She was participating in a preschool program but was unable to transition to an older class due to her disruptive behavior and behavioral needs. Her foster parents were spending one-on-one time to practice good public behavior and become acclimated to more stimulating environments. She responded to discipline.
T.L. was receiving mental health services and met with her therapist on a weekly basis. Her concerning behavior included becoming "excessively wild," screaming and having tantrums in public, and injuring herself due to her extra energy. She has a history of head banging, although that behavior had significantly decreased since her removal from mother. She was reported to pull feces from her diaper and either hand it to her foster parents or smear it, although this behavior had not occurred in approximately four months preceding the section 366.26 hearing.
R.L. and T.L.'s concerning behaviors (including fights, toilet training accidents, aggressive behavior) were observed to increase after visits with mother and had drastically improved since visitation with mother ended in October 2018.
2. Analysis
The prospect that the minors may have some continuing behavioral problems does not foreclose a finding of adoptability. (See In re Jennilee T. (1992) 3 Cal.App.4th 212, 224-225.) Nor does a finding of adoptability require that the child already be in a preadoptive home. (§ 366.26, subd. (c)(1).) What is required is the likelihood of adoption within a reasonable time. (In re Jennilee T., at p. 223.)
Both R.L. and T.L. are young and healthy. Although each minor has unique developmental and behavior issues, the juvenile court emphasized that they were showing "a great deal of improvement[]" with the assistance of the current foster parents and service providers. Additionally, both relatives and prospective adoptive parents, who had been provided detailed information about the minors' particular issues and needs, have expressed the desire to adopt the minors as a sibling set. The evidence supports the juvenile court's finding that R.L. and T.L. are likely to be adopted within a reasonable time.
DISPOSITION
The orders of the juvenile court (terminating parental rights) are affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Raye, P. J. /s/_________
Hull, J.