Opinion
A157588
02-04-2020
In re T.Y. et al., Persons Coming Under the Juvenile Court Law. HUMBOLDT COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. K.L. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JV180007-2)
K.L. (Mother) and S.Y. (Father) appeal from judgments terminating their parental rights to their children under Welfare and Institutions Code section 366.26 and finding the children adoptable. Their sole contention on appeal is that the juvenile court erred in making the latter finding. We affirm.
Mother and Father have eight children, A.Y., T.Y., E.Y., S.Y., J.Y., Pa.Y., Pe.Y., and K.Y. A.Y., who turned 18 during the pendency of the proceedings, is not a subject of this appeal.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
BACKGROUND
In January 2018, the Humboldt County Department of Health and Human Services (Department) received a referral after then 15-year-old E.Y. called police to inform them Father had been sexually abusing her for the past three years, "taking pornographic videos and pictures" of her, and selling the content to his friends.
The Department filed a section 300 petition alleging serious physical harm, failure to protect, serious emotional damage, sexual abuse, cruelty, and abuse of a sibling. (§ 300, subds. (a)-(d), (i) & (j).) The children were detained and placed among five foster families.
E.Y. reported the sexual abuse began when she was 12 years old, when she awoke to find Father on top her. She "felt something hard and was confused" and pushed him away. Father, who had been drinking, apologized. But thereafter, he began "groping her at night at home." He "would put his hand on her privates and have a hand in his boxers." When she was 13 years old, she tried to talk to Mother about what was happening, but Father "locked her in his bedroom and raped her. This was the first time he had put his penis in her vagina." She tried to get away and scratched his face, but he told her to be quiet. After the assault, he "told her to clean herself out with water." A month or two later, he raped her again. This time E.Y. did "not fight him." Father told her he "has a hormone disorder and gets horny and needs sex one time a day."
Father later began filming her on his cell phone. "The first time, he took out his phone and was filming her vagina." He told E.Y. that they "needed the money and he would blur her face." Sometimes Father would film himself "lick[ing] her vagina prior to putting his penis inside, and sometimes he would [just] film himself licking her vagina." The most recent occurrence was a week before E.Y. reported the abuse to police.
E.Y. stated that one time when Father was "raping her in her bedroom and was completely naked," Mother walked in and saw them. Father "got up and stood behind a table and [E.Y.] covered herself with a blanket." Mother "began screaming, 'What the fuck are you doing?' " Both parents then left the room, but the next day Mother "acted like nothing had happened." Her younger sister, S.Y., had also walked in on her and Father, and Father "shut the door quickly and told [S.Y.] that [E.Y.] was trying on a Halloween costume."
A month before she reported Father, E.Y. once again tried to resist him, but when she did so he "kicked her in the head, nearly knocking her out." He had also recently raped her when she, her sister A.Y., and Mother were all sleeping in a hotel room with two beds. He put E.Y. on the floor and "raped her next to the bed."
E.Y. stated that when the abuse started, the sexual assaults occurred "two to three times a month, but then it was every week or two weeks." She was "depressed and . . . self-harmed by cutting." She tried to make sure Father "did not abuse any of her siblings by making him promise not to and by asking the siblings if anything happened."
E.Y. disclosed the abuse to a cousin who encouraged her to talk to her sisters. E.Y. told her older sister, A.Y., and A.Y. told their sister S.Y. A.Y. and E.Y. then told the police.
During A.Y.'s interview, she stated she is only home on the weekends because she attends a school for the deaf during the week. A.Y., S.Y., and J.Y. are deaf and communicate through American Sign Language. A.Y stated E.Y. disclosed Father's abuse to her two days before the interview. She also stated S.Y. told her she had seen "naked pictures" on Father's phone and the person "in them looked young."
Police searched the home and found "multiple new vehicles," cash, multiple video cameras, and 26.28 grams of black tar heroin "packaged for sales within reach of the children." The police also uncovered multiple text messages between Father and E.Y. where Father stated they needed "to re-film and named specific sex acts they needed to film." Father admitted to sexually abusing E.Y., filming it, and then selling the recordings.
Father was arrested and is facing multiple criminal charges.
A social worker at the home observed "a bottle of Hennessy cognac" within reach of the children. When the social worker spoke with Mother, she admitted that just before Thanksgiving, she had "walked in on her husband and [E.Y.] 'having sex' " and when she talked to him about it the next day "he promised it had been an accident and he would not do it again." She continued to allow Father to supervise the children "after learning he was sexually abusing [E.Y.]" and "insinuated that she believed the Father and [E.Y.] were having consensual sex." When reminded of the age of consent in California, Mother responded, " 'I know,' " but that "E.Y. [had] been looking at 'weird porn' in the past year or two." Mother stated she would allow Father to return home if he were released from jail. She claimed the " 'black tar' " stuff, referring to the heroin found in her home, belonged to her mother-in-law " 'for her pain.' "
The court ordered the children placed in foster care, ordered visitation for Mother, found visitation with Father would be detrimental to the children, and set the matter for a jurisdiction/disposition hearing.
An amended petition was filed, alleging the children were at risk of serious physical harm due to Father's conduct. Father would hit the children "with his hands and with other objects, including a rod from window blinds, and has left marks on them." He had thrown objects at them and "left injuries," and pulled their hair. In November 2005, Father had also "kicked [A.Y.] and broke her femur completely in half." Mother was aware of Father's physical abuse but "has been unable or unwilling to intervene."
In the jurisdiction report, Mother now claimed she had talked to E.Y. about the abuse, but E.Y. denied anything had happened, and she "did not want to 'push' [E.Y.] further because she was afraid [E.Y.] would 'do something.' " She also now claimed she had not known heroin was in the home and stated it may have been from a party. She additionally denied knowing Father had filmed E.Y., and while she stated Father had been "bringing extra money into the household," she thought it was from his work.
Another of the children, T.Y., had been having "issues with personal boundaries and understanding when and where it is appropriate to touch people" at school. He had also spoken with his foster care parent about sex and asked for a kiss. When the foster parent explained he would not kiss T.Y. and that "adults do not have sex with children or kiss children," T.Y. responded " 'Yes they do, my uncle had sex with me and filmed it.' " When interviewed, T.Y. "appeared uncomfortable . . . and did not want to talk about things that had happened." T.Y. had also recently told his foster parent "he should get his ass beat with a 'metal stick.' " When asked what he meant by metal stick, T.Y. replied " 'The kind that you turn to close the blinds in the windows.' "
S.Y., in turn, confirmed she had walked in on Father and E.Y. sometime in October, but could not remember what she saw. She stated Father hit all of the children " 'pretty hard . . . with hands and other things' " and one time he made her brother's head bleed.
A.Y. and E.Y. spoke to the social worker together. A.Y. was concerned that because she is deaf and "sleeps hard," Father may have done something to her, and she requested a medical appointment to "make sure everything was okay." When E.Y. insisted she could keep her siblings safe, A.Y. reminded her about the time Father broke A.Y.'s leg when she was younger. A.Y. stated Father had tried to convince her she had fallen off a swing, but she knew that was a lie and that he had "kicked her really hard in the leg" and broken it.
The court found the allegations to be true by clear and convincing evidence, sustained the section 300 petition, and set the matter for a disposition hearing.
The disposition report detailed Mother's "inconsistent and conflicting stories about her knowledge of and response to . . . [F]ather's crimes." While she previously stated she was unaware of Father's filming E.Y., text messages between Father and Mother proved otherwise. Mother stated she thought the sex between E.Y. and Father was "consensual," despite acknowledging awareness of the legal age of consent. She stated she did not want to talk to E.Y. about the abuse because she did not want E.Y. "to get upset and hurt herself." But she then denied that E.Y. had "ever displayed self-harming behaviors." She "implied that she felt [E.Y.] was at fault" because E.Y. was " 'sexualized.' " As late as March 2018, a month before the dispositional report, Mother stated "she did not know if it was true that . . . [F]ather had molested [E.Y.] and that there were videos," despite having reported she had walked in on Father "raping [E.Y.]"
Although the siblings were in five foster homes, they regularly saw one another. The Department was searching for a "culturally-appropriate foster placements where the children can be placed together." It recommended the children be declared dependents of the court, no reunification services be offered to Mother or Father, and the matter be set for a section 366.26 hearing.
At the dispositional hearing, the court removed the children, bypassed services and set a section 366.26 hearing to select a permanent plan. In a June 2018 addendum report, the Department identified a "potential relative placement" who was "willing to provide placement to all of the children" and A.Y.
Father filed a notice of intent to file a writ but it was rejected by this court as untimely.
By the time of the section 366.26 report, in October 2018, a paternal relative, the children's cousin, was "in the process of completing the Resource Family Approval process and [was] awaiting the approval letter," which was the "first step to approving the placement for adoption." The Department believed all of the children were adoptable and that "no exception exists that would prevent adoption."
At the section 366.26 hearing, the court stated it had read and considered the assessments, reports and recommendations of the Department. At the request of the Department, and joined by the minors' and Mother's counsel, the court declined to order termination of parental rights, set adoption as the permanent plan and continued the hearing for 180 days "for the placement issue" and to allow the Department to "attempt[] to locate an adoptive family."
In the meantime, in an April 2019 addendum report, the Department had identified two more potential placements. First, nonrelative extended family members, T.Y.'s foster parents, were "interested in adopting all of the children." The foster parents had "developed a relationship with all of the children" and "expressed an understanding of the importance of sibling relationships and wants all of the children to live in the same place." Second, a paternal aunt had also come forward to "express[] interest in having the children placed with her and stated she would be willing to provide permanency through either guardianship or adoption." Despite the fact that all of the children were not currently in the same adoptive home, the Department recommended the parents' rights be terminated, as there was a "substantial probability" all of the children would be adopted. The court once again continued the matter.
The Department provided updates on the children in a June 2019 addendum report, the 366.26 adoption assessment report, and the addendums to the adoption assessment.
T.Y. was working on a transitional independent living plan because he would turn 18 before any adoption could be finalized. T.Y. met the "criteria for Intellectual Disability due to his below average general intellectual functioning and deficits in adaptive behavior" and also met the criteria "for Specific Learning Disability due to a processing deficit in attention and a discrepancy in his intellectual ability or achievement in the areas of mathematical calculation." As a result, he required "specialized academic instruction in all core academic areas . . . as well as social skills and specific behavior interventions." He was in the 11th grade and enrolled in special day classes for science, math and language as well as general education classes. He expressed a desire to work after graduating and to get his own apartment or share one with friends. T.Y. had no significant known health concerns. He was not currently receiving counseling but was "awaiting services from county mental health" and had sought services with his school counselor as needed.
The rest of the children were "developmentally on track."
E.Y. was in the 10th grade and was developing a transitional independent living plan with the Department's independent living skills coordinator. She was receiving mental health services from Victim Witness and Humboldt County Rape Crisis and was just beginning services with county mental health.
Both S.Y. and J. Y. have severe to profound "sensorineural hearing loss, bilateral," use American Sign Language to communicate, and were enrolled in a school for the deaf. Neither child has any other health concerns. S.Y. was in the seventh grade and was described as "kind, social, and artistic" and is "intrinsically motivated to do well in school and show[ed] perseverance when completing tasks." S.Y. received counseling at her campus at school as needed. J.Y. was in the fourth grade and described as "happy, friendly, and helpful" and was "an excellent artist." She did not receive counseling but also had "not exhibited symptoms to indicate that she [was] in need."
Pa.Y. and Pe.Y. were both in elementary school, and K.Y. was too young to attend school. The three youngest children had "not exhibited symptoms that require intervention."
The Department also updated the status of potential placements. The paternal cousin, who currently had five of the children, "no longer wanted to provide permanency for the children," as she did not feel she could "provide for the children as much as they deserve." The paternal aunt was still willing to adopt all of the children, but E.Y. and T.Y. did not want to leave their current placements.
T.Y.'s foster parents continued to express interest in adoption, and the three oldest children (E.Y., S.Y., and T.Y.) expressed a desire to be adopted by them, and the remaining younger children "expressed that they want to be placed together with their siblings" and were "familiar with the prospective care providers" as they had assisted in keeping T.Y. "connected with the rest of his family throughout the past year." As of the writing of the second addendum to the adoption report, the children were in the process of "transitioning" into T.Y.'s current placement. The foster parents were going through the "Resource Family Approval process to increase the number of children that they can have placed in their home," "stated their intent to learn sign language in order to communicate with [S.Y.] and [J.Y.]," and were "in the process of purchasing a home . . . large enough to accommodate this family size."
The Department did not conclude the children were "generally" adoptable, but rather, concluded they were "specifically" adoptable based on the following: the recommendation the children be adopted as a group because they were a "bonded sibling set"; the children's ages, which ranged from three to 17; that the children had "a variety of unique, different needs"; and that they were likely to be adopted by T.Y.'s foster parents.
At the hearing, Father argued the Department had "failed to fulfill its burden in demonstrating these children are adoptable." He asserted the children suffered "from a variety of disabilities, learning disabilities, deafness" and required "significant services and support" and that further, they had "extremely unique cultural needs." Father was concerned about these needs "being met should parental rights be terminated and they be adopted by a non-relative."
Minors' counsel noted that none of the children objected to placement with T.Y.'s foster parents and, in fact, all of them were in agreement with it. Counsel reiterated that the children were all adoptable as "there have been multiple people who have come forward ready, willing and able" to do so and that T.Y.'s foster parents "had one of the most disabled of the children in their home th[e] entire time" and thus were aware of the children's needs. Additionally, these foster parents had the "means to keep any connection going with any other appropriate family members."
The Department joined with minors' counsel and stated that the only "exception" raised, the sibling bond exception raised by Father, was a nonissue because T.Y.'s foster parents were willing to take all seven children.
The court found, by clear and convincing evidence, the children were likely to be adopted and terminated Mother and Father's parental rights.
DISCUSSION
Adoptability
At a section 366.26 hearing, the juvenile court selects and implements a permanent plan for the dependent child. The purpose is to protect the child's " ' "compelling rights" ' " to have a placement that is stable and permanent, founded upon a strong emotional commitment from a caretaker. (In re D.M. (2012) 205 Cal.App.4th 283, 289.) " 'At a permanency plan hearing, the court may order one of three alternatives: adoption, guardianship or long-term foster care. [Citation.] If the dependent child is adoptable, there is a strong preference for adoption over the alternative permanency plans.' [Citation.] 'Once the court determines the child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1).' " (In re G.B. (2014) 227 Cal.App.4th 1147, 1165.) When, as here, reunification services have ceased, "the focus of the proceedings changes from family reunification to the child's interest in permanence and stability." (Id. at p. 1163.)
"The issue of 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. [Citations.] Hence it is not necessary that the minor already be in a potential adoptive home or that there be a proposed adoptive parent 'waiting in the wings.' [Citations.] [¶] 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. (1994) 22 Cal.App.4th 1642, 1649-1650 (Sarah M.).)
However, in some cases, "a minor who ordinarily might be considered unadoptable due to age, poor physical health, physical disability, or emotional instability is nonetheless likely to be adopted because a prospective adopted family has been identified as willing to adopt the child. Where the social worker opines that the minor is likely to be adopted based solely on the existence of a prospective adoptive parent who is willing to adopt the minor, an inquiry may be made into whether there is any legal impediment to adoption by the parent. (Sarah M., supra, 22 Cal.App.4th at p. 1650.)
Whether a child is found "generally" or "specifically" adoptable, we review a juvenile court's finding of adoptability for substantial evidence, such that the " 'appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order.' " (In re Jose C. (2010) 188 Cal.App.4th 147, 158.)
The Department and the children expressed a desire to be kept together, and as the children were from a large sibling set, ranging in age from three to 17, and had multiple special needs, they are not generally adoptable. Rather, it appears the court's finding that the children were adoptable was based on the fact that a particular family was willing to adopt them (although there was at least one more relative willing to adopt). The court's assessment of "specific" adoptability, therefore, could not focus solely on the children, but also required a determination of whether there were any legal impediments to adoption by the prospective adoptive parents and consideration of the Department's preliminary assessment of the family's fitness as adoptive parents.
Mother and Father assert there was no substantial evidence to support the finding the children were specifically adoptable by T.Y.'s foster parents because the children did not all reside with them, their house could not accommodate all the children, they had only just begun the resource family approval process, and they did not know sign language.
The record amply supports the juvenile court's finding the foster parents were suitable adoptive parents. They were licensed foster parents and had been caring for T.Y., who, as minors' counsel noted, was "one of the most disabled of the children," for over a year and half. They had met and interacted with all the siblings, including S.Y., and J.Y. and were aware of any issues the children had. They stated their commitment to learn American Sign Language and their intention to support J.Y. and S.Y.'s continued attendance at their school for the deaf. It was their goal to keep the children "connected with their . . . culture" and family, and they had been in "contact with the children's extended relatives" to further this goal. They had "obtain[ed] housing" large enough to accommodate the bigger family size. The Department had "explained the long term benefits and consequences of adoption" including the "legal, financial rights and responsibilities of adoption." Finally, all of the children were in the process of transitioning into the home, and all of the children agreed with the adoption.
There was no evidence the children's needs would impede adoption by these foster parents. Furthermore, other than T.Y., who was already in their care, the other children were all "developmentally on track." S.Y. and J.Y. were described as "kind, social, and artistic" and "happy, friendly, and helpful," respectively. E.Y. was described as "a remarkable resilient young woman." The foster parents were aware of the abuse she had suffered and had supported her "as she gave testimony during [Father's] criminal trial."
Neither Mother nor Father claimed there was any legal impediment to adoption by T.Y.'s foster parents in the juvenile court, and they have therefore waived any such issue on appeal. (In re G.M. (2010) 181 Cal.App.4th 552, 563-564.) In any event, their new claim of a legal impediment is meritless. Legal impediments to adoption are set forth in Family Code sections 8601 through 8603. (Id. at pp. 559-560; see Sarah M., supra, 22 Cal.App.4th at p. 1650.) Family Code section 8601 requires, in general, that an adoptive parent be at least 10 years older than the child. Family Code section 8602 requires the child's consent if he or she is over the age of 12. Family Code section 8603 prohibits adoption by a married person, who is not lawfully separated, unless the spouse consents or is incapable of giving consent.
Here, Family Code section 8601 is satisfied as there was no evidence the foster parents were less than 10 years older than any of the children. Family Code section 8602 is satisfied because all of the children over the age of 12 consented to the adoption. (See Sarah M., supra, 22 Cal.App.4th at p. 1650.) And Family Code section 8603 is satisfied because the reports indicated both of T.Y.'s foster parents were committed to adoption. While Father points to the fact the foster parents "had just begun the Resource Family Approval . . . process" as a legal impediment, he cites nothing to support his assertion this was a legal impediment.
Parents cite to In re Valerie W. (2008) 162 Cal.App.4th 1 (Valeria W.); In re B.D. (2008) 159 Cal.App.4th 1218 (B.D.) and In re Carl R. (2005) 128 Cal.App.4th 1051 (Carl R.) in support of their challenge to the court's adoptability finding. Not one of these cases aides their cause.
In Valerie W., supra, 162 Cal.App.4th 1, the potential adoptive parents consisted of a mother and her adult daughter. (Id. at p. 4.) The Court of Appeal reversed the order terminating parental rights to several children because it was not clear the adult daughter was qualified to adopt. (Ibid.) In addition, the agency's assessment failed to address the fact one of the minors had an undiagnosed medical condition and unresolved emotional issues. Since the extent of the minor's needs was unknown, the agency had not sufficiently assessed the potential adoptive parents' ability to meet those needs. (Id. at pp. 14-16.) Here, in contrast, both of T.Y.'s foster parents expressed their desire to adopt, and they had known the children for over a year and were well aware of the children's needs.
In B.D., supra, 159 Cal.App.4th 1218, the appellate court held there was no evidence to support a finding the minors were likely to be adopted as a sibling group, as the agency had recommended. (Id. at p. 1233.) While the agency had located one family that was interested in adopting the minors, one of the children required a "long therapeutic" transition before he would accept adoption. Additionally, the potential adoptive family had not had a preliminary assessment and did not have a foster care license, which prevented the social worker "from providing information about the children." (Id. at pp. 1232-1234.) Here, in contrast, the foster parents were licensed and as discussed above, were aware of the children's disabilities and needs.
In Carl R., supra, 128 Cal.App.4th 1051, the appellate court addressed a "very narrow" issue—the proper scope of the inquiry by a juvenile court that must determine the adoptability of a child who will require lifetime intensive care. (Id. at p. 1062.) That is not close to the case here. Although T.Y. has some intellectual challenges, there is no evidence in the record suggesting he, or any of the children, will need intensive care for life. On the contrary, T.Y. and E.Y. were creating transitional independent living plans. And, again, the report confirmed that the prospective adoptive parents are familiar with the children's needs and committed to meeting those needs.
In sum, the record amply supports the juvenile court's adoptability finding.
Given our conclusion that the record supports a "specifically" adoptable finding, we need not determine whether the record would also support a finding of "general" adoptability. We also need not, and do not, consider the propriety of taking judicial notice of the postjudgment evidence submitted by the Department, and therefore deny the Department's request for judicial notice.
DISPOSITION
The judgments are affirmed.
/s/_________
Banke, J. We concur: /s/_________
Humes, P.J. /s/_________
Margulies, J.