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In re Andrew V.

California Court of Appeals, Second District, First Division
Feb 18, 2011
No. B226897 (Cal. Ct. App. Feb. 18, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County No. CK70003 Debra L. Losnick, Commissioner.

Matthew I. Thue, under appointment by the Court of Appeal, for Defendant and Appellant M.V.

Nicole Williams, under appointment by the Court of Appeal, for Defendant and Appellant F.C.

Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, O. Raquel Ramirez, Deputy County Counsel, for Plaintiff and Respondent.


JOHNSON, J.

Father M.V. and Mother F.C. appeal the termination of their parental rights to their children Andrew V., Matthew V. and Drew V. pursuant to Welfare and Institutions Code section 366.26. They contend substantial evidence did not support the dependency court’s finding the minors were adoptable. We affirm.

All statutory references herein are to the Welfare & Institutions Code unless otherwise noted.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

1. Detention, July 23, 2008.

In July 2008, Baby Boy C. (later named Drew) was born with a positive toxicology screen for methamphetamine. Mother had given birth to Drew on the sidewalk, and when paramedics arrived, they found Drew face down on the concrete and Mother lying next to him with the umbilical cord still attached. Mother and Drew were transported to the hospital, where the social worker questioned Mother about Drew’s siblings Andrew (born November 2004) and Matthew (born January 2007), who had been the subject of a previous dependency proceeding.

Mother admitted she was currently living in the backyard of a boarded up house in foreclosure with Matthew, Andrew, and Father. The family had lived in the house until the bank boarded it up, and then had lived in a neighbor’s van parked in front of the house. At first in her conversation with the social worker, Mother denied any drug use, then admitted smoking marijuana and methamphetamine for back and stomach pain the day of Drew’s delivery. She denied she was addicted to drugs. Department of Children and Family Services (DCFS) detained Drew and placed him in foster care.

The social worker met with Mother’s neighbor Enrique, who said that Father had not returned with the other two children. Enrique did not have any knowledge of physical abuse of the children by their parents, but he had observed Mother under the influence during her recent pregnancy. DCFS went to the home where the family had been living, but was unable to locate Father, Matthew or Andrew.

DCFS’s detention report stated Mother’s two older children had been the subject of five referrals during 2005 to 2007. The fifth referral on September 7, 2007 resulted in a section 300 petition filed September 19, 2007, which alleged that the parents had a history of domestic violence; Father had pushed Mother while pregnant with Matthew; Father physically and verbally abused Andrew; Mother slapped and pushed Andrew and pulled his hair; Mother had a history of illicit drug use, including methamphetamine and barbiturates; Mother had a positive toxicology screen for methamphetamine and barbiturates at the time of Matthew’s birth; and Father had a history of illicit drug use. (§ 300, subds. (a), (b), (j).) The petition was dismissed on the basis of insufficient evidence at the time of the jurisdictional hearing in December 2007.

The first referral, dated September 29, 2005, was based on a report that Mother had slapped Andrew several times. DCFS learned that the parents were chronic drug abusers who used their food stamps and other benefits to buy drugs. The family moved from home to home because they could not pay the rent. The referral was closed because DCFS could not locate the family.

The section 300 petition filed July 23, 2008 alleged Drew had been born with a positive toxicology screen for methamphetamine, Mother had a history of substance abuse and was a current user of methamphetamine, and Mother and Father had failed to protect the children due to her methamphetamine use. (§ 300, subd. (b).)

DCFS requested a protective custody warrant for Andrew and Matthew.

At the July 23, 2008 detention hearing, Mother and Father brought Andrew and Matthew with them. The court found Father to be the presumed father of the children. Father requested the children be released to him. The court ordered a prerelease investigation (PRI) for Father, and set a pretrial resolution conference for August 28, 2008.

2. August 28, 2008 Prerelease Investigation.

DCFS’s report stated that the children (Andrew, Matthew, and Drew) remained placed in a foster home with Christina and Francisco S. Father had advised DCFS he was capable of providing the children with necessary care. Father did not have a permanent job, and although the house was boarded up, the family stayed inside during the night. Father stated that once he had housing, Mother could rent a bedroom from him, although Mother had no job and no money. Father believed Mother could get some money from a brother in Mexico. DCFS did not believe it was in the children’s best interest to release the children to Father because Father and Mother continued to reside at the foreclosed home, which had no gas or running water; Father had admitted to using crystal methamphetamine in the past two months; and Father had two arrests for driving under the influence. DCFS recommended that the court find the PRI negative as to Father.

At the August 28, 2008 hearing, the court found the PRI report negative, and set the jurisdiction hearing on the petition for October 23, 2008.

DCFS filed an amended section 300 petition August 28, 2008, alleging that Mother had a history of substance abuse, was an occasional user of illicit substances, Father had a history of substance abuse, and Father had failed to take action to protect the children.

3. October 23, 2008 Jurisdictional Hearing.

The jurisdictional report stated that Mother had told DCFS the day she went into labor with Drew, Father left her and the children to go to the store to get food. About 30 minutes later she started to have lower back pain, and her friend Nora gave her a substance she snorted up her nose for the pain. Mother claimed she did not know what the substance was. Mother felt her water break and asked Nora to call an ambulance, but the baby came out quickly. At the hospital, Mother admitted the substance she had snorted was crystal methamphetamine. Mother claimed that she was not an addict, and did not desire to use drugs again. She only used crystal methamphetamine when she felt depressed. Mother had been born in Mexico and completed high school and two years of nursing school. She has a 20-year-old son from a prior marriage. She came to the United States in 2002, and has worked cleaning homes and washing dishes. She denied domestic violence.

Father claimed he did not know Mother used drugs during her pregnancy, and if he had known, he would have stopped her. Prior to the birth of Andrew, Father drank every weekend and would go to parties. He also drank one or two beers daily after work, and would drink a beer in the morning if he had a hangover. Father claimed he had stopped drinking. Father had been born in Mexico and completed some high school, and he had gone to trade school to learn to fix televisions and radios and had his own shop for about six months. He has worked in construction since coming to the United States. Father denied abusing the children.

At the hearing, the court sustained the amended petition. Mother informed the court she was currently in drug counseling, had clean drug tests and had completed parenting classes, and requested unmonitored visitation. Father, who had been drug testing and taking parenting classes, also requested unmonitored visitation. The court ordered the parents to finish parenting classes; to submit to random drug tests; and to attend individual counseling. The court also ordered monitored visitation with discretion in DCFS to liberalize visitation.

4. Six-Month Review, February 20, 2009.

DCFS’s report stated that the children were placed in the foster home of Luciano and Irma D. on October 6, 2008, and were doing well. Matthew received services from Regional Center to address speech delays. Andrew and Drew were meeting developmental milestones.

Mother and Father completed their parenting programs in October 2008. Father enrolled in drug treatment in January 2009. However, both parents submitted a dirty test on November 17, 2008. Mother claimed they tested positive because of “the place where [they] used to live.” All of their other tests were negative, but both parents had missed two tests.

The parents visited the children twice a week for two hours at each visit, but at Father’s request to accommodate his drug treatment program schedule, the visits were changed to once a week for three hours. The social worker noticed that the parents did not stay for the full visit and paid the most attention to Andrew. At times, they did not hold Drew, and paid minimal attention to Matthew.

Father informed the social worker they wanted to name Baby Boy C. “Drew.”

In January 2009, the social worker visited the parents unannounced. The parents were living in the garage of a home. The garage lacked insulation, drywall, and a bathroom. The parents did not have a refrigerator. DCFS noted that the home environment was inappropriate and posed risks to the children.

At the hearing, Mother informed the court she would complete her drug program in the next 30 days, and that she had completed parenting classes. She requested unmonitored visitation. Father joined in her arguments. The court confirmed that Baby Boy C. was now named “Drew, ” granted the parents’ request, and set March 27, 2009 for a contested review hearing.

5. Continued Six-Month Review, March 27, 2009.

DCFS’s report stated that the children were doing well in foster care. Father informed DCFS that they were living in the garage of a foreclosed home, and that they had permission to stay there if they maintained the home. Father had been discharged from his drug treatment program for failure to attend. The parents had canceled three visits during the review period. The social worker reported that at one visit, Mother approached the caregiver and discussed the monetary value of Drew in order to offer him for sale. Mother had not reported for drug testing since early March. The social worker made an unannounced visit to the parents’ visitation with the children in mid-March, and observed Mother sitting by herself. The caregiver was holding Drew, and assumed all responsibility for looking after the children. Andrew got stuck in the bathroom, but Mother did not help him.

The social worker scheduled a meeting with the parents for the next day. Father did not want to disclose their current address because they were living in a foreclosed home, and admitted he was not enrolled in drug treatment. He said he would enroll in the plan Mother was attending. When confronted with the fact she was not drug testing, Mother stated she did not believe she had to anymore. At an on-demand test that day, neither parents tested positive for drugs. DCFS recommended termination of reunification services.

At the hearing, the court continued the matter to April 10, 2009 for a contested hearing because the parents had not had sufficient time to prepare for DCFS’s change in recommendation. The matter was subsequently continued to May 8, 2009.

6. Six-Month Review Hearing, May 8, 2009.

DCFS’s report stated that the parents had enrolled in drug counseling, but Mother had been discharged from the program due to failure to participate in drug testing. Father had missed four consecutive sessions. On May 6, 2009, Mother came to the counseling center and claimed Father had abused her. Father had moved to the garage of a shop. The parents did not qualify for Section 8 housing or public housing because they were undocumented.

Last minute information for the court stated that Father had told the children at a visit they would be going home soon with the parents, and Mother had used foul language.

At the hearing, neither parent presented evidence. Mother asked for a continuance to speak to her counselor to verify the accuracy of the information in DCFS’s report. The court denied the request. Mother argued that although her performance of her case plan had slipped, she was making a strong effort, and that her difficulties were the result of her poverty. She requested an additional six months of reunification services. Father requested additional reunification, contending his housing situation and poverty had made compliance difficult, pointing out that he had finished his parenting program, although he admitted he has missed some drug tests. The court found the case was based on illegal drug use, not poverty. The court recognized the parents were in partial compliance with their plans, but never at the same time. “I believe that these young children need consistency. They need the parents to absolutely commit wholeheartedly to leading a drug free life-style.”

The court terminated reunification services, and set a permanency plan hearing for September 3, 2009.

7. Permanency Planning, September 3, 2009.

DCFS reported that Matthew had speech delays, and was a client of the Regional Center and receiving in-home therapy twice a week. He was participating in the Early Start program. Andrew and Drew had met all developmental thresholds. All the children were emotionally stable.

The adoption assessment found the children adoptable. The children had been residing since October 2008 in the home of prospective adoptive parents, the D. family, who ran a daycare from their home. The prospective adoptive parents were working on completing their homestudy, and DCFS requested continuance of the hearing for 90 days pending completion of the homestudy. The children had a strong bond with the D. family. Mother and Father were attending visitation, and were not having problems during the visits.

At the hearing, the court trailed the matter to November 5, 2009.

8. November 5, 2009 Review of Permanency Planning.

DCFS’s review report stated that Andrew had an incident at school where he attempted to cut another child’s ear with scissors. The Department recommended psychological evaluations for the children, as the parents had not agreed to sign release forms.

At visitation, the parents had not been redirecting the children, but when they did, the children were nonresponsive and defiant. The children were hitting each other. Father was late for visits. Mother claimed in front of the children that Andrew was acting out in school because he was not at home with her, and stated that he would soon come back home. When the social worker told Mother she could not say such things in front of the children, Mother became upset and disrespectful. The visit was terminated.

On September 16, 2009, the adoptive mother informed DCFS she no longer wanted to proceed with adoption. She explained that she was dissatisfied with her husband’s decision to proceed with the adoption, and indicated there were other marital problems. DCFS initiated a search for another adoptive family, and was able to locate a family. The children had one visit with the new prospective adoptive family, which went well. The family had an approved adoption homestudy, and two additional visits had been scheduled with the children. DCFS found the children to be adoptable based on the identification of the new prospective adoptive family.

At the November 5, 2009 hearing, the court trailed the section 366.26 hearing to January 8, 2010, and continued the review hearing to May 6, 2010.

9. November 9, 2009 Section 388 Petition.

Mother requested additional reunification services on the basis she had completed her parenting plan and a drug treatment program, and was visiting the children twice a week. The court summarily denied the petition on the grounds no new circumstances were shown, noting that the compliance certificate for parenting was dated in October 2008.

10. December 1, 2009 Section 388 Petition.

On December 1, 2009, Father requested additional reunification services, unmonitored visitation, and placement of the children with him. He contended he had completed an outpatient drug treatment program. The court set a hearing for January 8, 2010.

11. January 8, 2010 Hearing-Father’s Section 388 Petition and Continued Section 366.26 Hearing.

DCFS reported the children were placed in a new foster home. DCFS recommended denial of Father’s section 388 petition because Father had only tested five times during the six-month drug program he had completed; Father continued to lead a transient lifestyle; and continued to reside with Mother.

DCFS also reported that both parents had arrived late for visitation or missed visits. The parents demonstrated poor parenting skills during the visits, allowing the children to run around, climb on furniture, and hit one another. They did not engage the children in activities or provide positive reinforcement. Father was overwhelmed and frustrated during visits with the children. Mother became upset at one visit with Andrew’s haircut, told him he looked “ugly, ” and yelled at the caregiver.

DCFS reported the second prospective adoptive family was not a successful match with the children after an unsuccessful overnight visit. The prospective adoptive parents were overwhelmed with the children’s activity and behavior. A new adoptive family had been identified, and a visit with the children had been scheduled. The children were placed in a new foster home on November 19, 2009, and were adjusting well to the new placement.

At the hearing, the court denied Father’s section 388 petition on the grounds he had not shown changed circumstances or that it would be in the children’s best interest. The court rescheduled the section 366.26 hearing to May 6, 2010 to coincide with the permanency plan review. The court ordered Regional Center evaluation for all children.

12. May 6, 2010 Section 366.26 Hearing.

DCFS’s section 366.26 report stated that the children had been placed on February 8, 2010 in the home of prospective adoptive parents. The children appeared calm and well behaved when with their prospective adoptive parents. Andrew and Drew were awaiting Regional Center assessments, and Andrew and Matthew were receiving therapy. The therapist observed the children acted out every time they had a visit with the parents, and Andrew became anxious and angry. The therapist did not find the children’s visits with their parents to be beneficial. The social worker had observed the children were disruptive when visiting their parents, but they were much better behaved when at home with the prospective adoptive parents. The prospective adoptive parents reported the children would act out for two or three days after a visit with the parents, and Matthew had nightmares. The adoptive parents had a completed and approved home study.

DCFS reported the parents had missed numerous visits, were consistently late for visits, and the quality of the visits were not positive. The parents were not able to redirect the children; they often did not interact with the children; Mother would sit on the couch while the children ran around the room or hitting each other; the parents would yawn during visits; and during one visit, Mother slept the entire time.

DCFS found it would be in the children’s best interest to proceed with adoption.

DCFS’s status review report filed the date of the hearing stated that the children had adjusted well in their adoptive home. They were making developmental advances in the home and obeying the adoptive parents, and “demonstrate great comfort and belonging in the home of the adoptive applicants.” The children had tested the prospective adoptive parents with defiant behavior, and the prospective adoptive parents were responding well to the children. The prospective adoptive parents had made the home safe for the children, and had taken the children to museums, parks, and celebrations. The children were comfortable in the adoptive home, where the prospective adoptive parents had provided structure and a routine. The children’s manners had shown improvement, and they had flourished in the three months they had been in the home. In contrast, the children’s visits with the parents showed little structure. The children misbehaved, and the parents could not control them.

At the hearing, the court held that the children’s permanent plan would be identified at the section 366.26 hearing.

13. June 25, 2010 Section 366.26 Hearing.

At the hearing, Mother argued that the section 366.26, subdivision (c)(1)(B)(i) exception applied, pointing to her regular visitation. She also argued that the children were not adoptable due to their behavioral problems. They had only been in the current adoptive home since February 2010, which was an insufficient time to determine the children were specifically adoptable by the family. Father joined in Mother’s arguments. The court found the exception did not apply because the parents still had monitored visitation. The court terminated parental rights, and identified adoption as the permanent plan with the prospective adoptive parents as the adoptive parents.

DISCUSSION

Father, with whom Mother joins, argues that the dependency court’s adoptability finding was not supported by substantial evidence because Matthew and Andrew had behavioral problems and two prior prospective adoptive placements had failed. DCFS’s failure to establish general adoptability meant that the court’s finding rested on a finding of specific adoptability, a finding not supported in the record. Here, DCFS claimed the third adoptive family was “very committed” to adoption, but the same claim had been made with the first set of adoptive parents.

In her briefs, Mother directs her arguments to Matthew and Andrew, while Father contests the court’s adoptability finding as to all three children.

A section 366.26 hearing proceeds on the premise that the efforts to reunify the parents and child are over, “and the focus of the hearing is on the long-term plan for care and custody.” (In re Jasmine J. (1996) 46 Cal.App.4th 1802, 1808.) “The court must proceed by section 366.26, subdivision (c)(1) and terminate parental rights if clear and convincing evidence shows that it is likely that the minor will be adopted.” (Ibid.) “The adoptability issue at 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. [Citation.] 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 A.A. (2008) 167 Cal.App.4th 1292, 1311.)

A child is either “generally” or “specifically” adoptable. A child is generally adoptable if the child’s traits, e.g., age, physical condition, mental state, and other relevant factors do not make it difficult to find a person who will adopt him or her. On the other hand, if a child is deemed adoptable only because of the caregiver’s willingness to adopt, the child is specifically adoptable. (See In re R.C (2008) 169 Cal.App.4th 486, 492–494; In re Carl R. (2005) 128 Cal.App.4th 1051, 1061.) If a child is generally adoptable, “the suitability or availability of the caregiver to adopt is not a relevant inquiry. [Citations.] Rather, a caregiver’s willingness to adopt serves as further evidence the minor is likely to be adopted within a reasonable time either by the caregiver ‘or by some other family.’” (In re R.C., supra, 169 Cal.App.4th at pp. 493–494; see also In re Carl R., supra, 128 Cal.App.4th at p. 1061.) “[T]he existence of a prospective adoptive parent, who has expressed interest in adopting a dependent child, constitutes evidence that the child’s age, physical condition, mental state, and other relevant factors are not likely to dissuade individuals from adopting the child. In other words, a prospective adoptive parent’s willingness to adopt generally indicates the child is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family.” (In re A.A., supra, 167 Cal.App.4th at p. 1312; see also In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649–1650.)

When the child is specifically adoptable because of a particular family’s willingness to adopt the child, the trial court must determine whether there is a legal impediment to adoption. (In re Carl R., supra, 128 Cal.App.4th at p. 1061.) Carl R. found that a “child who is specifically adoptable and who will need total care for life is at high risk of becoming a legal orphan if parental rights are terminated and the prospective adoptive family is later determined to be unsuitable.” Thus, the court must consider more than whether there is a legal impediment to adoption; the court must consider whether the prospective adoptive parents can meet the child’s needs. (Id. at p. 1062)

We apply the substantial evidence test to the dependency court’s finding the minor is adoptable. Our task is to determine whether there is substantial evidence from which a reasonable trier of fact could find, by clear and convincing evidence, that the minor is adoptable. “The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order.” (In re R.C., supra, 169 Cal.App.4th at p. 491.)

Here, there was substantial evidence supporting the dependency court’s finding that the children were generally adoptable. The children were overcoming their behavioral problems in their most recent placement with the assistance of therapy and devoted prospective adoptive parents who understood the children’s needs. Matthew was receiving speech therapy. A significant amount of the children’s behavior problems were caused by the visits with the parents, and were alleviated when the children returned home to the prospective adoptive family. These characteristics support a finding the children were generally adoptable because their problems were relatively minor and were in the process of being ameliorated.

Further, contrary to the parents’ assertions, the children’s behavioral issues, Matthew’s speech delays, and the fact two prior adoptive families elected not to pursue adoption does not mandate a finding the children were not generally adoptable and were specifically adoptable. In that case, the dependency court runs the risk of creating a “legal orphan” if parental rights are terminated and the children’s adoptive placement fails and they are unable to later find an adoptive home. (See, e.g., In re Carl R., supra, 128 Cal.App.4th at p. 1062.) Here, however, assuming the children were not generally adoptable, substantial evidence supports a finding that the children are specifically adoptable because the current prospective adoptive parents are well suited to taking care of the children’s behavioral and educational needs. The children are receiving the necessary therapy, discipline, and structure to assist them in overcoming their problems.

The issue of specific adoptability must be raised in the dependency court to avoid forfeiture of the issue. (In re G.M. (2010) 181 Cal.App.4th 552, 563–564.) However, Father contends that because DCFS’s reports were insufficient and the burden was on DCFS to establish adoptability, he was not required to object to the children’s specific adoptability in the dependency court to preserve a challenge to the sufficiency of the evidence supporting their adoptability finding on appeal. We disagree. In order to preserve a challenge to the children’s adoptability on the grounds they were not specifically adoptable, Father was required to raise the issue in the dependency court.

DISPOSITION

The order of the superior court is affirmed.

We concur: MALLANO, P. J., CHANEY, J.

The second referral, dated March 27, 2006, was also based on Mother’s physical abuse of Andrew. It was reported Mother operated as a prostitute out of a local bar and would bring her customers to her house when Andrew was present. The parents denied the allegations, and no signs of abuse were found on Andrew, who appeared to be clean and well dressed. DCFS determined the referral was unfounded.

The third referral, dated January 31, 2007, reported that Mother tested positive for methamphetamine and barbiturates following the birth of Matthew, and Matthew’s toxicology screen was positive. Mother entered into a Voluntary Family Maintenance Contract (VFM), with the only condition that she randomly drug test. After Mother’s successful completion of the VFM contract, the contract was ended in August 2007 and DCFS’s supervision of Mother ended.

The fourth referral, dated April 30, 2007, stated that Andrew played outside unsupervised. Mother was at work at the time, and Andrew had been left in the care of a neighbor. Andrew had managed to jump over a safety gate, and Mother repaired the gate after the incident. The referral was closed.


Summaries of

In re Andrew V.

California Court of Appeals, Second District, First Division
Feb 18, 2011
No. B226897 (Cal. Ct. App. Feb. 18, 2011)
Case details for

In re Andrew V.

Case Details

Full title:In re ANDREW V. et al., Persons Coming Under the Juvenile Court Law. v…

Court:California Court of Appeals, Second District, First Division

Date published: Feb 18, 2011

Citations

No. B226897 (Cal. Ct. App. Feb. 18, 2011)

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