Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JJV059539B
APPEAL from a judgment of the Superior Court of Tulare County. Charlotte Wittig, Juvenile Court Referee.
Maureen L. Keaney, under appointment by the Court of Appeal, for Defendant and Appellant.
Kathleen Bales-Lange, County Counsel, and Konstantine Demiris, Deputy County Counsel, for Plaintiff and Respondent.
Before Vartabedian, Acting P.J., Harris, J., and Cornell, J.
OPINION
Francine G. appeals from an order terminating her parental rights (Welf. & Inst. Code, § 366.26) to her son, D. She contends the court erred because there was insufficient evidence of his adoptability. On review, we will affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
In September 2005, the Tulare County Superior Court adjudged two-year-old D. and his five siblings dependent children and removed them from parental custody. Respondent Tulare County Health and Human Services Agency (the agency) initiated dependency proceedings in May 2005 after appellant and her newborn daughter K. tested positive for methamphetamine.
Although D. and his older siblings were supposed to be in their father’s care, he failed to provide D., in particular, with the basic necessities of life. Over the summer of 2005, the father left D. in the care of a relative without making adequate provision for the toddler’s care. D. suffered greater neglect in the process. Tragically, the toddler’s misfortune continued. D. suffered apparent physical abuse in his foster home placement between mid-July and early August 2005. In the latter part of August 2005, the agency placed D. with “Non-Relative Extended Family Members,” Pamela and Daniel V.
By the time the agency placed D. in the V. family home, all of his siblings were living there as well. The V. family made great efforts to care for all six children. However, the children had so many behavioral needs and behaved violently together that the V. family was overwhelmed. Within a few months time, the agency found other placements for appellant’s four eldest children and left D. and his baby sister K. in the V. home. Since then, both children have remained in the V. family’s care.
Despite approximately 12 months of reunification services, appellant made minimal progress and the father made no progress toward mitigating the problems that resulted in the children’s removal. Consequently in May 2006, the court terminated reunification services and set a section 366.26 hearing to select and implement permanent plans for the children. The anticipated plan for D. was adoption.
By this point, the court had terminated services in connection with the infant K. and pursued a permanent plan of adoption for her.
The court would eventually conduct its section 366.26 hearing in November. In the interim, an adoptions social worker filed a “366.26 WIC Report” in which she recommended the court find D. adoptable and terminate parental rights. The V. family was committed to adopting him. She reported as follows.
When D. arrived in the V. home, he did not talk. He also gorged himself, a type of behavior often seen in children from emotionally and environmentally impoverished backgrounds. Further, D. was aggressive towards himself, members of his family and foster family as well as pets. His aggressive behaviors increased after he visited with his siblings and one of his grandparents.
D.’s behavior eventually led to developmental and psychological evaluations. The Central Valley Regional Center determined D. was ineligible for its services. It appeared he was developmentally on track. The psychologist who evaluated D. in March 2006 opined that his “general presentation” best fit a profile of Reactive Attachment Disorder (RAD): Disinhibited and Avoidant. In her written evaluation, the psychologist explained:
“ Disinhibited -- Instead of caution, excessive familiarity or psychological promiscuousness with unknown persons, can give hugs to anyone who approaches them and go with that person if asked; may approach a complete stranger for comfort, food, to be picked up, or to receive a toy. [D.] also presents with symptoms of a syndrome which is characterized by excessive appetite (in children who have been in several foster homes) or excessive appetite and excessive thirst (in children who experience severe stress). Based on the symptomology endorsed, it is suggested that [D.] meets a more specific criteria than Disinhibited Attachment: Avoidant -- fails to cry when separated from primary care giver [and] often continues to play even when left entirely alone. Actively avoids and ignores primary care giver on reunion (and according to age, moves away, turns away or leans out of arms when picked up). No contact seeking with no display of distress or anger. Appear to experience a lack of grief at loss, lack of remorse, treats people like furniture, bullies, avoids closeness, doesn’t trust others, flat affect, and wants to be left alone.”
Relevant to appellant’s argument on appeal, the psychologist made the following observations about the evaluation process:
“Based on the observation and rating of the included tasks, Ms. [V.] was able to provide and modify structure based on the child’s behavior. Ms. [V.] made her role as a parent clear, but [D.] does not seem to recognize this role at all times. At the beginning of the observation, [D.] displayed some aggressive and defiant behavior, but appeared to stay engaged throughout the remaining tasks after being redirected. Appropriate challenge and nurturance were provided by Ms. [V.] throughout each task. During the separation period, [D.] continued the task that he and Ms. [V.] were completing while she was in the room. Upon reunion, Ms. [V.] attempted to engage and [D.] acknowledged her and proceeded to show her what he had been doing during separation. Based on the reactions to each other during the observation period, it appears that there is an insecure attachment style between [D.] and Ms. [V.]. However based on the positive reactions and nurturance during observation, it appears that Ms. [V.] has formed a secure attachment to [D.].”
The psychologist determined that D. and his foster family were eligible to participate in a RAD program. The foster parents could attend RAD parenting groups and become educated on RAD-associated issues such as communicating and interacting with a RAD child. The psychologist also recommended an occupational therapy screening for D. as well as a “hearing screen.”
Thereafter, the foster mother began parent-support therapy and D. started attending a Headstart program. D. and the foster mother also saw a licensed mental health clinician for informal case management support.
In the meantime, however, the foster parents accepted D.’s five-year-old sister back into their home. The V. family was distressed that the five-year-old had been moved three additional times since she left their home in October 2005. They preferred to keep appellant’s three youngest children as a sibling set toward a plan of adoption.
Initially, the agency recommended a permanent plan of adoption for D. and his older sister with Mr. and Mrs. V. as the prospective adoptive parents. The children were adoptable because they were placed with foster parents, who wished to adopt them and who stated they were committed to the plan of adoption. A preliminary assessment of the V. family was also positive. According to the agency, the V. family raised D. and his younger sister K. for more than a year and wanted to preserve as much of the sibling set as they could manage. They were already in the process of adopting K. Mr. and Mrs. V. had established a parental bond with the children and had come to love them as if they were the couple’s own children.
However, the agency’s recommendation would eventually change in the older sister’s case to long-term foster care. As the adoption social worker wrote in an October 2006 “Change in Permanent Plan” report, the V. family discovered over time that the five-year-old’s practice of lying, fighting and instigating conflict within the family was more than normal sibling rivalry. She appeared to have a significant number of RAD symptoms. D. was frequently her victim. She had stated she wanted to “rid the home of [D.].” She would lie to get him in trouble, physically assault him and place him in dangerous situations.
Meanwhile, D. had been well on the road to recovery. He was increasingly compliant with family rules and showing attachment behaviors. Nonetheless, to protect himself from his older sister, he started to fight back and regress to old, negative behaviors.
By September 2006, the V. family came to the realization that the five-year-old girl’s more serious behavioral problems were beyond their capabilities and they could not meet her needs. They were no longer committed to adopting the five-year-old. The couple also requested and a mental health clinician recommended that the five-year-old and D. be separated for each child’s health. The agency eventually placed the five-year-old with her older siblings in a relative’s home. D. remained with the V. family where he could stabilize his behaviors.
The havoc created by the five-year-old’s presence had caused the V. family to question adopting either her or D. However, according to the mental health therapist, D. had recently shown to be well-bonded within the V. family. Moreover, his progress had been so positive that Mr. and Mrs. V. were moving forward with adoption proceedings.
At the November 2006 hearing, it was undisputed that D. was adoptable. The court so found and terminated parental rights.
DISCUSSION
Before a court may terminate parental rights, it must find by clear and convincing evidence that it is likely the dependent child will be adopted. (§ 366.26, subd. (c)(1).) The adoptability question 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. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) Although it is unnecessary that the child already be in a potential adoptive home or has a proposed adoptive parent “waiting in the wings” (In re Jennilee T. (1992) 3 Cal.App.4th 212, 223, fn. 11), the juvenile court may properly consider a prospective adoptive parent’s willingness to adopt as evidence the child is likely to be adopted within a reasonable time. (In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.) All that is required is clear and convincing evidence of the likelihood that adoption will be realized within a reasonable time. (In re Zeth S. (2003) 31 Cal.4th 396, 406.)
In this case, there was substantial evidence that D. was likely to be adopted. His behavioral problems apparently diminished any claim that he was generally adoptable (see In re Jayson T. (2002) 97 Cal.App.4th 75, 85). Nonetheless, he was placed with committed foster parents, who wished to adopt him. They shared a parental bond with him and loved him as if he were their own child. They were also well aware of D.’s behavioral problems having cared for him for more than one year.
Overlooking this evidence, appellant argues otherwise. She questions the V. family’s commitment to adopt D. She further contends the agency should have produced evidence of other approved families available and willing to adopt D. in light of his behavioral problems. She therefore concludes there is no clear and convincing evidence that D. was likely to be adopted. We disagree.
To begin, although the superior court must make its adoptability finding by clear and convincing evidence (§ 366.26, subd. (c)(1)), the “clear and convincing” standard of proof is not a standard for appellate review (Crail v. Blakely (1973) 8 Cal.3d 744, 750). The sufficiency of evidence to establish a given fact, where the law requires proof of the fact to be clear and convincing, is primarily a question for the trial court to determine, and if there is substantial evidence to support its conclusion, the determination is not open to review on appeal. (Ibid.)
In questioning the V. family’s commitment to adopt D., appellant relies on early descriptions of his behavior, ignoring the progress he made once he and Mrs. V. began participating in the RAD program. Appellant also claims D. had an insecure attachment to his adoptive mother. In so doing, appellant takes out of context one sentence of the psychologist’s March 2006 evaluation of D. which we have quoted from in our history.
“Based on the reactions to each other during the observation period, it appears that there is an insecure attachment style between [D.] and Ms. [V.].”
Appellant overlooks the sentence that immediately followed in the psychologist’s report.
“However based on the positive reactions and nurturance during observation, it appears that Ms. [V.] has formed a secure attachment to [D.].”
Appellant also dismisses much later clinical evidence that D. appeared to be well-bonded within the V. family.
Similarly, appellant isolates the therapist’s remark from a September 2006 update that the V. family had questioned adopting D. However, she disregards the context, that is Mr. and Mrs. V. had hoped to adopt D.’s older sister as well but the impact of the older sister’s placement in the V. home and the havoc it reeked not only caused them to question their decision but to ask the agency to remove the older sister. Appellant also overlooks the evidence that D.’s progress had been so positive Mr. and Mrs. were moving forward with adoption proceedings as to D., despite their problems with the older sister.
Appellant essentially asks us to reweigh the evidence and draw inferences to overturn the superior court’s decision. This we cannot do. The power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379.) All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the decision, if possible. We may not reweigh or express an independent judgment on the evidence. (In re Laura F. (1983) 33 Cal.3d 826, 833.) That is the purview of the trial court.
Third, we reject appellant’s claim that caselaw required evidence of other approved families who were available and willing to adopt the children. In crafting her argument, she cites three decisions, none of which stands for such a position or involves a fact pattern similar to the present case. (In re Asia L. (2003) 107 Cal.App.4th 498 (Asia L.); In re Jayson T., supra, 97 Cal.App.4th 75; In re Jennilee T. (1992) 3 Cal.App.4th 212.)
At most, the Asia L. court noted there was no evidence of any approved families willing to adopt the children. (Asia L., supra, 107 Cal.App.4th at p. 512) The Asia L. children had emotional and behavioral problems serious enough to make them difficult to place for adoption (§ 366.26, subd. (c)(3)). They also were not in an adoptive placement. At best, their foster parents were willing to “explore the option of adoption.” (In re Asia L., supra, 107 Cal.App.4th at p. 512.) The Asia L. court considered such evidence “too vague” to support an adoptability finding. (Ibid.)
Finally, we would agree with the following observation from In re Jayson T., supra, 97 Cal.App.4th at page 85, one of the opinions upon which appellant relies.
“[I]t is only common sense that when there is a prospective adoptive home in which the child is already living, and the only indications are that, if matters continue, the child will be adopted into that home, adoptability is established. In such a case, the literal language of the statute is satisfied, because ‘it is likely’ that that particular child will be adopted.”
For all the reasons stated above, we conclude that the juvenile court did not err in finding it likely the children would be adopted.
DISPOSITION
The order terminating parental rights is affirmed.