Opinion
G032096.
10-9-2003
In re CHARLES M., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. CHARLES M., Defendant and Appellant.
Marsha Faith Levine, under appointment by the Court of Appeal, for Defendant and Appellant. Benjamin P. de Mayo, County Counsel, and Mark R. Howe, Deputy County Counsel, for Plaintiff and Respondent. Sylvia L. Paoli, under appointment by the Court of Appeal, for the Minor.
Charles M. (Charles) was born in May of 1996. He was detained under the custody of the Orange County Social Services Agency (SSA) in late August 2001 based upon allegations he was at risk of suffering serious harm or illness and serious emotional damage as a result of being left unsupervised by his mother in an unsafe and unsanitary residence.
The juvenile court ordered termination of parental rights to Charles pursuant to Welfare and Institutions Code section 366.26 (all further code references are to the Welfare and Institutions Code). The juvenile court found, pursuant to section 366.26, subdivision (c)(1), it is likely Charles will be adopted. Charless father (father) appeals from the order terminating parental rights. Charless mother (mother) does not appeal. Charles, through counsel, requests we affirm.
The only issue presented is whether substantial evidence supports the juvenile courts finding it is likely Charles will be adopted. We conclude substantial evidence supports that finding and therefore affirm.
Facts and Proceedings in the Juvenile Court
I. Detention and Dependent Child Declaration
In August 2001, a police officer found Charles home alone, inside a bedroom. A pair of panty hose had been tied to the bedroom doorknob and to a closet handle to prevent the bedroom door from opening. Charles told the police officer he was hungry and had not eaten since having a peanut butter and jelly sandwich the day before. The home was filthy. It was cluttered with debris and smelled of urine. Open condom wrappers, pills, and a bottle of brake fluid were spread on a mattress in the middle of the living room floor. Flies swarmed over an insect-infested trash bag in Charless bedroom. Charless bedroom was contaminated with unknown chemicals and infested with insects. The apartment did not have electricity, the refrigerator and cupboards were empty, and Charles had no access to drinking water. Mother later was arrested for child endangerment and neglect.
The fathers whereabouts were unknown when the juvenile dependency petition was filed. Mother had had no contact with father since Charless birth. At the detention hearing held on August 29, 2001, the court found father to be Charless alleged father. In removing Charles from parental custody, the court ordered that both mother and father receive services to reunify the family.
Shortly after the detention hearing, father was located in a Colorado prison, where he was serving time for manufacturing, selling, and distributing marijuana. Father is expected to be released from prison in November 2003.
On October 25, 2001, the juvenile court found the allegations of the petition true and declared Charles a dependent of the court pursuant to section 360, subdivision (d).
II. Foster Home Placements
After detention, Charles was diagnosed with attention deficit hyperactivity disorder (ADHD), for which he was prescribed medication. Charles also was diagnosed with autism and adjustment disorder with mixed disturbance of conduct and emotions and received services through the North Los Angeles County Regional Center. SSA believed Charless "developmental and mental handicaps make the child difficult to place with an adoptive family."
Charless initial foster care placement was unsuccessful. In November 2001, Charles was placed in the home of his paternal grandmother. Charless grandmother stated she did not observe Charles display symptoms of ADHD. Based on her statements, SSA requested in February 2002 that Charles be taken off all medications for a month-long psychiatric assessment. The juvenile court granted the request. During the assessment period, Charles was impulsive, aggressive, and disruptive, and appeared restless. The court granted SSAs subsequent request to resume administration of psychotropic medication.
At the six-month review hearing on April 17, 2002, the juvenile court ordered that Charles remain a dependent and continued reunification services. The court deemed Charless placement with his grandmother to be appropriate.
In July 2002, Charless behavior worsened. He was unable to focus, was defiant, lied, and exhibited aggression and poor concentration. He also suffered urinary and fecal incontinence. The court approved a change in Charless medication, but Charles showed little progress in the month following the change.
By October 2002, Charles had made some progress. He was not as quiet as he had been. He was making progress in school. He listened better, smiled, and appeared to be adjusting to his placement with his grandmother. Charles never asked for mother, and when he heard mothers voice on an answering machine, he told his grandmother to turn it off.
Meanwhile, father contacted Charles by telephone at least once a week. In November 2001, the juvenile court had granted SSAs request for an incarcerated parent service plan. The social worker sent father a book on parenting and some blank paper so he could write to Charles from prison. The correctional facility reported that father refused to participate in all programs, had 28 code violations during his incarceration, had incited inmates to sexually assault a female staff member, had been expelled from a substance abuse program, and was abusive and violent in nature.
By October 2002, Charless grandmother had become ill. She remained willing to assume legal guardianship, but could not commit to adopting Charles and asked that he be placed in another home. Charles was detained pending placement in another home.
At the 12-month review hearing on October 28, 2002, the juvenile court terminated further reunification efforts because mother and father had failed to comply with their respective case plans. The court found that returning Charles to parental custody under the circumstances would create a substantial risk of detriment, and set a hearing pursuant to section 366.26 to adopt an appropriate permanent plan for Charles. Father initially indicated an intention to challenge that decision, but withdrew his notice of intent to file a writ petition in January 2003.
Despite Charless psychological and behavioral issues, SSA was able to place him in the home of Curtis D. (Curtis) on November 19, 2002. Charles was under the care of Curtis when the section 366.26 hearing was held in March and April 2003.
III. The Section 366.26 Report
The report prepared for the section 366.26 hearing concluded: "Child adoptable, terminate parental rights."
The report described Charles as having "[d]evelopmentally and emotionally, . . . the mannerisms of a younger child." The report stated, "[a]t times, his speech is incoherent, in that his story telling lacks spatial time and details. The child tends to be tangential in his speech. [He] jumps from one story to another and needs to be redirected back to what he is trying to say." The report stated: "[Charles] is unable to socially interact appropriately with other children, . . . hits other children, and . . . scratches adults. . . . [Charless] language is provocative, and explicit. [Charles] is exhibiting behavioral problems in the classroom. [Charles] has problems following directions, staying focused and staying in his seat."
The report stated, "Dr. Rome [Charless psychologist] has given the child a diagnosis of Adjustment Disorder with Mixed Disturbance of Conduct and Emotions. Dr. Rome stated that the reactions of the child, including depressed affect and aggressive conduct, appear to result from the stressors caused by the changes in his life, including his lack of success with peer relationships at school, as well as the changes in his family situation." According to Dr. Rome, Charles has autistic disorder due to his displaying "`a qualitative impairment in socialization as he has had difficulties in establishing age appropriate friendships nor relationships with others, . . . language delays and continues to display difficulty in comprehension, and also tends to repeat his expressions and statements over and over." Charles had been prescribed Risperdal for his ADHD. He later was prescribed Adderall in addition to Risperdal.
But the SSA report also described Charles as "adorable and friendly" and stated he always greeted the social worker with a smile. Charles, the report stated, interacts well when he has known the person for some time. Charles played with Curtiss nephews and nieces and called them his cousins. He had become attached to Curtis, called him "`dad," and called Curtiss mother "`granny." While the social worker was visiting, Charles asked Curtis to pick him up and hold him. Charles was developing independent skills in such areas as dressing and hygiene.
Charles has told Curtis he wants to live with him "`for ever and ever." During a private meeting, Charles appeared to the social worker to be "easily distracted." When Charles was asked what he likes most about living with Curtis, Charles responded he liked the way Curtis cooks. Charles said he enjoyed living with Curtis, but when asked if he wanted to remain there, Charles said he did not know.
The report stated Curtis had been a licensed foster care provider for seven months, had experience working with developmentally challenged children, was involved in Charless school, and attended weekly counseling sessions at Charless day treatment program. Curtis told the social worker he "enjoys working with children with developmental challenges and difficult behaviors." Curtis lives in a three-bedroom, two-bathroom house on a large lot. His mother, with whom he is close, lives next door, and his sister lives down the street.
The report stated, "[Curtis] has shown over the past months that he is capable of meeting the childs needs" and "[s]ince [Charles] has been placed in [Curtiss] care, it has been reported that the child has made tremendous strides. [Curtis] reported that he rarely gets negative reports from school and the school has commented that they have seen a positive change in the child since he has been placed with [Curtis]."
According to the report, Curtis had grown to love Charles and wanted to adopt him. Curtis "appear[ed] to be genuine about his commitment to adopt the child." In January 2003, Curtis submitted an application to adopt Charles. The report concluded Charles "is probably adoptable" despite his "special needs."
IV. The Section 366.26 Hearing
The section 366.26 hearing was held on March 25 and April 2 and 3, 2003. The section 366.26 report and an addendum dated March 24, 2003 were received into evidence. Mother had moved to Oakland in 2001. She did not appear or testify at the section 366.26 hearing despite several continuances granted to permit her to do so.
Charless social worker testified "Charles has some special needs" and is "probably adoptable based on those needs." She testified an adoptive home had been identified, and Curtis was committed to adopting Charles. Charless paternal grandmother initially expressed a desire to adopt Charles but was unable to adopt him due to her health problems. According to the social worker, "[a]s long as Charles continues to receive the services that hes currently receiving right now, he can be stable and maintain in a placement without major problems."
The social worker testified Charles was not exhibiting any behavioral problems that would make him unadoptable. After being placed with Curtis, Charles had progressed to the point he was being considered for a less restrictive classroom setting. She confirmed "[Curtis is] committed to adopting Charles. Hes made sure that Charles is getting everything he needs to address his special needs."
To the social workers knowledge, father had not seen Charles since going to prison, but did call Charles twice a month. The social worker had forwarded two letters from father to Charles. The paternal grandmother had not visited Charles, choosing not to interfere because Charles appeared happy and stable in his environment. The social worker testified Charles had a good relationship with his grandmother and had responded well to the structure and stability she provided while he was under her care. Charles had not behaved negatively since leaving his grandmothers home. The social worker testified Charles expressed a desire to stay with Curtis.
Donald La Shure, a licensed clinical social worker, testified on fathers behalf. La Shure had handled high-risk cases as a senior social worker for Child Protective Services in San Diego. La Shure believed SSAs recommendation to place Charles for adoption was premature. The basis for La Shures opinion was: (1) Charles has fairly severe psychological and psycho-emotional problems; (2) the recommendation to place Charles for adoption was made only 60 days after Charles had been placed with Curtis; (3) Curtis did not have sufficient experience as a foster parent to deal with Charless severe emotional and psychological problems; (4) a failed adoption could seriously harm Charles; and (5) there would be little or no detriment to waiting a period of time before proceeding with adoption. La Shure testified a failed adoption could damage a child psychologically by making the child again feel abandoned and rejected.
La Shure acknowledged he had no reason to question Curtiss intentions, but believed "theres a difference between . . . taking a child in for adoption for 60 days and 12 more years of what would most certainly be a lot of work." La Shure was not opposed to the adoption; he believed more time and more caution would better serve Charless needs. He believed SSA was "rushing the termination and adoption," and Charless placement with Curtis should last a minimum of one year before adoption.
La Shure expressed concern that everything "just seemed too fine," over Curtiss lack of experience caring for children, and over Curtiss statement in the section 366.26 report that Curtis and Charles "look alike." To La Shure, this statement indicated Curtis was more concerned about himself than with Charles and was possibly "over identifying and really needing" Charles.
Nevertheless, La Shure acknowledged that Curtis appeared to be meeting all of Charless current needs and, despite reservations, did not foresee a problem with Curtis eventually adopting Charles. La Shures primary concern was Charles had not been with Curtis long enough. In La Shures opinion, "with more time, whatever questions or concerns that I brought forward today would be answered." La Shure also testified he considered Charles to be presently adoptable "with certain factors in place" and conceded it would be more detrimental to Charles to sever his relationship with Curtis than it would be to sever his relationship with his father and mother.
The juvenile court considered the evidence and argument of counsel and then found pursuant to section 366.26, subdivision (c)(1) by clear and convincing evidence it is likely Charles will be adopted. The court ordered parental rights terminated as to father and mother. Father appealed.
Discussion
To terminate parental rights and order adoption, the juvenile court must find by clear and convincing evidence "it is likely the child will be adopted." (§ 366.26, subd. (c)(1).) Our review is limited to determining whether substantial evidence supports the juvenile courts finding of adoptability. (In re Jeremy S. (2001) 89 Cal.App.4th 514, 523, disapproved on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 408, 414; In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.)
"`The issue of adoptability . . . focuses on the minor, e.g., whether the minors age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor." (In re Jeremy S., supra, 89 Cal.App.4th at p. 523, quoting In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.)
Substantial evidence supports the juvenile courts finding it is likely Charles will be adopted. The social worker, who had observed and interacted with Charles, concluded he is adoptable. Charles was six years of age at the time of the hearing, he is "adorable and friendly," and he has no physical limitations. Although Charles has been diagnosed with ADHD and autism, the social worker testified he did not exhibit any behavioral problems that would make him unadoptable. Charles takes medication, monitored monthly by a physician, to control the ADHD. The social worker did not believe Charless special needs made him unadoptable because "[a]s long as Charles continues to receive the services that hes currently receiving right now, he can be stable and maintain in a placement without major problems." In fact, Charles had made "tremendous strides" under the care of Curtis and at the time of the hearing was being considered for a less restrictive classroom. The fact Charless emotional and behavioral problems are diminishing supports a finding Charles likely will be adopted. (See In re Jeremy S., supra, 89 Cal.App.4th at p. 524.)
Curtiss desire to adopt Charles is further evidence he is adoptable. "Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minors 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 parents 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., supra, 22 Cal.App.4th at pp. 1649-1650.) Curtis has submitted the application to adopt Charles. Charless grandmother also expressed a desire to adopt Charles. Her decision not to adopt and to ask that Charles be placed in another home was due to her own health problems.
Father argues the only evidence of adoptability was the social workers opinion, which, father contends, was based solely upon the existence of a prospective adoptive parent. Father contends evidence of a prospective adoptive parent is insufficient in itself to support the finding Charles is likely to be adopted, and no evidence was presented that his health, age, and development made his adoption likely.
We disagree. Curtiss desire to adopt Charles certainly is a significant fact supporting adoptability—but it is not the only fact. SSA presented evidence that Charless age, development, and personality made adoption likely. As explained above, Charles was not yet seven years old at the time of the section 366.26 hearing—young enough for him still to be an attractive candidate for adoption. Charles is "developmentally on track physically" and his motor skills "are appropriate for his age." The 366.26 report stated Charles has no physical limitations. He is "adorable and friendly" and interacts well with people he knows. Although Charles has been diagnosed with autism and ADHD, those conditions are controllable and had been improving since his placement with Curtis.
Father contends "[t]he combination of emotional and psychological problems clearly indicate [Charless] chances for adoption at any time soon by someone other than Curtis [] are minimal at best." Father ignores the evidence supporting the juvenile courts finding of adoptability. Facts showing that adoption is less likely do not render a child unadoptable. We decline to hold a child is not likely to be adopted solely because the child has behavioral or emotional problems particularly where, as here, the problems are diminishing, the childs age, health, and physical development support adoptability, and a prospective adoptive parent exists. (See In re Jeremy S., supra, 89 Cal.App.4th 514 [childs medical and behavioral problems no impediment to adoptability]; In re Lukas B., supra, 79 Cal.App.4th 1145, 1154 [childs behavioral problems did not make child unadoptable]; In re Sarah M., supra, 22 Cal.App.4th at p. 1650 ["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 adoptive family has been identified as willing to adopt the child"].)
Father contends the juvenile court "jumped the gun in terminating parental rights" and should have continued the hearing to determine if Charless placement with Curtis would be successful. However, for the juvenile court to find adoptability, "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." (In re Sarah M., supra, 22 Cal.App.4th at p. 1649.) It follows that if there is a potential adoptive home, it is not necessary to wait to determine if the placement is successful to terminate parental rights. In addition, the evidence here showed not only the existence of a prospective adoptive parent, but the adoption would occur and would be successful. Curtis had submitted the adoption application. He expressed a strong love for Charles and met his special needs. Fathers expert acknowledged that Curtis appeared to be meeting all of Charless current needs and, despite reservations, did not foresee a problem with Curtis eventually adopting Charles. The expert considered Charles to be presently adoptable "with certain factors in place" and conceded it would be more detrimental to Charles to sever his relationship with Curtis than it would be to sever his relationship with his father and mother.
This case is similar to In re Jeremy S., supra, 89 Cal.App.4th 514, where the mother challenged the juvenile courts finding of adoptability on the ground the social worker did not know the severity of the childs medical, developmental, and behavioral problems. In In re Jeremy S., it was undisputed the five-year-old child had a seizure disorder and some intestinal and behavioral problems caused by the abuse he had suffered, but the social worker testified those conditions would not impede the childs chances for adoption. (Id. at p. 523.) The child was taking medication for the seizure disorder, and other children with seizure disorders had been placed. (Id. at p. 524.) The childs behavior problems were diminishing. (Ibid.) The child was too young to determine whether he was developmentally delayed and the extent of his medical condition. (Ibid.) The social worker reported the child was affectionate (ibid.) and the childs current foster family wanted to adopt him (id. at p. 525). Despite the uncertainty of the childs medical condition, the social worker opined that even if the current foster family did not adopt the child, another foster family would adopt him. (Ibid.) A panel of this court held the evidence sufficient to support the juvenile courts finding the child likely would be adopted. (Id. at pp. 523-525.)
The cases father relies on are dissimilar. In In re Amelia S. (1991) 229 Cal.App.3d 1060, 1065, the only evidence of adoptability was an indication in the permanency hearing report that a few foster parents were considering adoption. In In re Asia L. (2003) 107 Cal.App.4th 498, 512, the children, James and Asia, were physically healthy but displayed emotional and psychological problems requiring them to have specialized placement. The Contra Costa County Department of Social Services had not produced evidence of approved families willing to adopt children with the developmental problems faced by James and Asia. (Ibid.) The foster parents had expressed only a vague interest in adopting the children. (Ibid.)
Here, the finding of adoptability was not based on an "indication" the foster parent was considering adoption. The finding of adoptability was based on Charless age, health, temperament, physical condition, and relationship with his natural parents as well as Curtiss desire to adopt Charles. Curtis has done more than merely express an interest in adopting Charles; Curtis has submitted an adoption application and was working on a home study packet.
In In re Brian P. (2002) 99 Cal.App.4th 616, 624, the juvenile court made a finding of adoptability without an adoption assessment report, required under section 366.26. A prior "assessment" concluded the child "`to be a proper subject for adoption" but did not mention the likelihood of adoption. (Ibid.) SSA in this case prepared the required assessment report. The report addressed the likelihood of adoption and included a prospective caretaker assessment for Curtis, although the home study had not been completed.
In In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205, the juvenile courts finding of adoptability was based on Mr. E.s willingness to adopt the child, who was nine years old at the time of the section 366.26 hearing. The San Diego County Health and Human Services Agencys assessment did not address Mr. E.s criminal record and his listing as a perpetrator with Child Protective Services for allegedly abusing his nephews and niece. (Id. at pp. 1203, 1205.) The social services agencys assessment did not state whether there were any approved families willing to adopt a child of the childs age, physical condition, and emotional state, and did not consider the childs close relationship with the mother or the childs prosthetic eye, which required care and treatment. (Id. at p. 1205.) Here, in contrast, Curtis has stated he does not have a criminal record or a record with the child abuse registry, and Charles does not have a positive relationship with mother, was not quite seven years old at the time of the section 366.26 hearing, and has no reported physical conditions requiring treatment.
Charless counsel has filed a motion to take additional evidence, consisting of a declaration from counsel regarding her visit with Charles on July 26, 2003. In In re Zeth S., supra, 31 Cal.4th 396, the California Supreme Court held a reviewing court may not consider postjudgment evidence that is outside the appellate record to reverse the juvenile courts judgment terminating parental rights. Here, the declaration from Charless counsel is submitted in support of affirming the order terminating parental rights. We need not consider, however, whether In re Zeth S. permits a reviewing court to consider postjudgment evidence to affirm an order terminating parental rights because the evidence in the appellate record is sufficient to support the juvenile courts finding Charles likely will be adopted. We therefore deny the motion to take additional evidence.
DISPOSITION
The order terminating parental rights pursuant to section 366.26 is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J. and MOORE, J.