Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. JV020214
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. [ ]
Defendant Ward M. (“Father”) appeals from an order of the juvenile court, pursuant to Section 366.26 of the Welfare and Institutions Code, terminating his parental rights to his daughter, H.C., and adopting a permanent plan of adoption. Father contends: (1) the juvenile court’s finding that H.C. is adoptable is not supported by clear and convincing evidence; (2) the juvenile court should have continued the permanency hearing for 180 days to ascertain whether an adoptive home was available to H.C. We affirm.
Further statutory references are to the Welfare & Institutions Code.
FACTUAL & PROCEDURAL BACKGROUND
On February 9, 2006, plaintiff filed a section 300 dependency petition concerning H.C., age 5 years, born in December 2000. The petition alleged parents failure to protect the child (§ 300, subd. (b)) and to provide support for the child (§ 300, subd. (g)). The petition stated: Mother was homeless and had left the child in a place where there was substance abuse. Father removed child from this environment but was “unable to care for the child due to unresolved and ongoing issues of substance abuse coupled with prescription drug abuse and mental health problems. . . . [¶] On or about 02/07/06, the child was found in the care of father by the father’s Probation Officer . . . and arrested . . . for intoxication and violation of the terms of his probation. The child was placed in protective custody.” The Detention Report noted that “mother and father have participated in previous Child Welfare cases. The mother was successful at the time. The father was neither successful nor actively participating in Court ordered services. [¶] . . . Reunification Services were terminated to him and full physical custody granted to the mother; the father was allowed visitation only under supervised conditions.” It further noted father was currently incarcerated. On February 15, 2006, the court ordered continued placement for H.C. in suitable foster care.
The jurisdiction report filed March 6, 2006, states H.C. has been placed in relative foster care. The court sustained jurisdiction and set a dispositional hearing. At an uncontested disposition hearing on April 4, 2006, the court appointed a Court Appointed Special Advocate (CASA) for H.C. and continued disposition. By order of May 2, 2006, the court allowed father bi-weekly visits with H.C. at the Humboldt County Correctional Facility.
The Disposition Report filed May 9, 2006, reported: Father wishes parenting classes “to learn how to be a better parent to his daughter.” Mother stated father “has not been an active part of H.C.’s life” hitherto. Father is incarcerated and is on a trustee work crew. Both mother and present foster parent expressed concerns about H.C.’s inappropriate sexual behavior in the presence of males. Foster parent also reported H.C. “throwing objects when mad and hitting herself.” H.C. was placed initially with paternal grandmother but subsequently placed in foster care after suspicion of grandmother being intoxicated. Following a continued dispositional hearing held on May 9, 2006, the court entered orders declaring H.C. a dependent of the Court; authorizing her placement in a suitable foster care home; providing reunification services to father and mother; and setting a six-month review hearing for November 7, 2006.
A status review received by the court on November 2, 2006, stated that father had been released from jail and was in a residential drug treatment program. Father left the program in August, began drinking again in violation of his probation, and is currently incarcerated. The review states father was having bi-weekly visitations with H.C. while he was in treatment and would begin supervised jail visitations on November 3, 2006. Regarding compliance with the case plan, the review states father failed to complete his treatment program and is incarcerated for violation of probation.
Regarding H.C., the status review states that her first foster placement ended after 13 days due to her behavior. H.C. has been in her present placement since March 29, 2006, and has made good progress. Her brother B.C. is placed with her. The foster parent has helped H.C. to improve her behavior and H.C.’s Kindergarten teacher reports her doing very well in class. The review states that H.C. “has made tremendous progress in her present placement. The foster mother is able to work with H.C. addressing issues as they arise. Inappropriate behavior is addressed at the time of occurrence and is addressed in a positive way. H.C.’s teacher . . . states ‘H.C. is a delight in the classroom and on the play ground, she interacts well with the other students.’ ”
Attachment 5 to the status review is a letter dated October 25, 2006, from Department of Social Services Adoptions Specialist Teddee-Ann Boylan. Boylan states that she has met with H.C. in her foster care placement multiple times since her agency received an adoption referral in March 2006. She notes that initially “there were some behavioral issues but these have been greatly reduced based on the consistent care and one-on-one attention provided by this foster parent.” Boylan opines that “H.C. is an adoptable child. . . . She has proven to be resilient yet continues to require structure in the home environment, one-on-one attention and therapeutic services. H.C. has been impacted by the inconsistent visits by her mother and her father’s recent departure from the Teen Challenge Program. Based on this history, H.C. would benefit from a permanent plan of adoption and the opportunity to be settled in a home that provides stability.” Boylan notes that H.C.’s older half-sibling, B.C., is currently placed in the same home, has also been referred for adoption, and that the agency is dedicated to finding an adoptive home “that will take placement of both children.” The court’s 6-month review findings and orders filed on December 14, 2006, found father had made minimal progress in alleviating the problems necessitating H.C.’s placement out of the home, ordered H.C. to remain a dependent of the court, and set a 12-month status review hearing for March 6, 2007.
A status review received by the court on March 5, 2007, stated: “H.C. is developmentally on track,” is doing well in school, her teacher reports she is a good student and appears to enjoy school. During one incident on February 15, however, the principal was called to the classroom to assist in calming H.C. down after she growled at fellow student and threw chairs and pencils around. H.C. is currently attending weekly counseling but “is not on psychotropic medication, nor is there a need for medication at this time.” A caregiver’s report submitted by the foster mother on February 26, 2007, included notes on H.C.’s behavior by Lindsay Mangos, H.C.’s teacher. Mangos stated that whereas H.C.’s behavior in class in November 2006 was not a concern, H.C.’s behavior deteriorated in February 2007. Mangos stated H.C. had exhibited incidents of defiant, disruptive, and aggressive and violent behavior.
The CASA’s 12-month report was received by the court on February 16, 2007. The CASA recommended termination of reunification services to parents and that H.C. and her brother be moved to a concurrent home. The CASA noted that H.C. is now 6 years old, and opined that she is physically healthy and normal for her age. The CASA further opined that Ms. Mangos’ observations on H.C.’s recent deterioration in behavior represent “a definite change from earlier in the school year,” when H.C. was making “big social improvements.” The CASA reported Ms. Mangos’ further observation that H.C.’s “rough days,” when she is at her most defiant and frustrated, occur after mother’s visitations. The CASA opined that H.C.’s recent behavior “may be linked to H.C.’s mother not showing for visits again for the past month,” and that mother’s inconsistent contact is having a negative impact on H.C.’s education.
The 12-month review hearing was held on April 19, 2007. After testimony concluded, the court stated: “The difficulty in this case is that [father] is in a residential treatment facility until at least the end of July. So there is no way that he can in any way, outside of a supervised setting there, show anything about ability to parent the child because, due to his substance abuse problems, for which he has sought treatment many times and had the most recent relapse, that apparently led to him having to go into this treatment. . . . And [father] was not aware, really, whether the end of July is the end of the treatment or whether there is another phase to go. That was his testimony. So I don’t think this record supports [a] finding that there is a substantial probability that H.C. will be returned to [father] on or before August 7th, 2007 . . . . [¶] It is of concern that [father] just started his parenting last week, . . . because had he been doing this earlier . . . [we] may have had some information here. But he apparently waited for a number of years. . . . [T]here was one that was available to him previously, apparently in custody, but that he quit when he didn’t find it suitable . . . . [¶] I think it’s clear from all the evidence that the child can’t be returned to either parent. . . . [¶] Father has no place for the child, has indicated he’s in treatment, and doesn’t have any ability at this time to . . . care for H.C. And I don’t think . . . that by August 7th he will have reunified with the child given his status at this time.” The court terminated reunification services to father and ordered a section 366.26 permanency hearing within 120 days, on August 13, 2007.
The court received a section 366.26 report on July 2, 2007. Attached to the report was an adoption assessment prepared by the California Department of Social Services (Department) dated June 26, 2007. The adoption assessment states: H.C. has had four placements since April 2006 and has been in her current foster care home since May 24, 2007. Her medical condition “is reported to be good” and developmentally she is “on track.” “H.C. attended elementary school this past year and completed kindergarten. . . . H.C. experienced some challenges this year related to [her] behavior. In late January and into February of this year H.C. became extremely defiant and angry. She was violent and aggressive and exhibited behaviors including; kicking a teacher’s assistant in the stomach, throwing chairs, hissing and growling, refusing to participate in schoolwork and ignoring instructions. According to documentation from the school H.C. had an exceptionally difficult week in mid-February of this year. H.C. made academic progress throughout the kindergarten year in all areas. She received support services in Reading Title 1 and Math Title 1. H.C.’s mental and emotional status appears to be stable. H.C. was participating in therapy one time a week at Remi Vista but this was recently changed to bi-monthly appointments. . . . According to her therapist, . . . H.C. has increased her ability to moderate her own emotions. H.C. was described as initially unwilling to answer direct questions about her birth family. She would grimace and move on without answering. Over the past year H.C. has become less defiant and is throwing fewer temper tantrums in all environments.”
The adoption assessment further stated that H.C. has been interviewed concerning adoption, understands the concept, and “was very clear that she wants to be adopted.” She said she wanted “to live with the current family because ‘I like my mom and dad, I like the kids, I like the big house and I want to live here forever.’ ” Regarding future contact with her birth family, H.C. expressed a desire to see her mother “about two times a year, but she does not want to see her dad. When I asked her why she did not want to see her dad she was not able to be specific. H.C. also stated she would like to see her grandmothers, Sheila and Donna, occasionally but not at the same time.”
The adoption assessment stated that the prospective adoptive parents have been the foster parents since May 24, 2007. “They are developing a commitment to the child and have expressed a desire to adopt. . . . The preliminary assessment indicates this family appears suitable for adoption for H.C. This family has an approved home study.” The assessment also noted that if this family “is not able to provide permanence for H.C., it is the assessment of the undersigned that a transition to an adoptive family could occur with minimum disruption.” The adoption assessment’s recommendation was as follows: “After a thorough assessment of the above minor the Department has determined the minor is adoptable and recommends parental rights be terminated and a plan of adoption be ordered.”
In a report submitted to the court on July 26, 2007, the CASA concurred with the section 366.26 report’s recommendation that “parental rights be terminated and that a plan of adoption by H.C.’s current foster parents proceed.” The report stated: “H.C. is now 6½ years old. CASA observes that she has grown physically, intellectually and emotionally since CASA was appointed over a year ago. H.C. has learned most of the basic skills from Kindergarten and is familiar with letters, colors and numbers. She seems to be very happy and content in her new home and is enjoying all the activity with her new family.” Regarding health issues, the CASA stated, “H.C. is physically healthy and normal for her age. . . . Ms. Moser told CASA that H.C. seems to be improved with her jealousy issues with her brother and seems to be adjusting well to her new foster family. Ms. Moser stated that she has seen many positive changes in H.C. over the year that she has been seeing her. CASA recommends that H.C. continues counseling with Jana Moser.” Regarding H.C.’s education, the CASA noted that “she did have some rough times with other classmates and her teachers.” H.C.’s Kindergarten teacher reported to the CASA that “H.C. would say she did not have any friends and did not like school.” However, CASA opined that H.C. would benefit from having other siblings in her current home “in learning how to have relationships which will hopefully help her with socializing and making friends at school.”
On July 30, 2007, father filed a petition under section 388 based on changed circumstances asking the court to vacate the section 366.26 hearing and order resumption of reunification services for father. The court held continued hearings on father’s section 388 petition on August 16, August 22, September 5, and September 6, 2007, at the conclusion of which the court denied father’s section 388 motion and proceeded directly with the section 366.26 hearing. The court marked and received into evidence the 366.26 Report of July 2, 2007, and the CASA Report and Recommendations of July 26, 2007. The court also ruled that “all of the testimony that has been heard in relationship to the 388 petition will be considered by the Court as it relates to any arguments parties may have to exceptions to adoption as a permanent plan.” With that ruling, the parties offered no further evidence and instead proceeded directly to argument on the section 366.26 issues.
Father’s counsel argued that the section 388 testimony showed that “this child is very emotionally attached to the father” and would benefit from contact with father’s extended family. Accordingly, counsel contended that father was entitled to the “parental bond exception” to the termination of parental rights under section 366.36, subdivision (c)(1)(A). However, the court concluded there was clear and convincing evidence H.C. was adoptable and terminated parental rights of father and mother. Father filed a timely Notice of Appeal on September 7, 2007.
At the time of the hearing this section provided that if the court determines by clear and convincing evidence “that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption . . . unless . . . [¶] [t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. (§ 366.26, subd. (c)(1)(A) (2007).)
Father’s Notice of Appeal predates the juvenile court’s final order (filed on October 11, 2007), which was not included in the Clerk’s Transcript on appeal. On the court’s own motion, we ordered the record on appeal augmented to include a supplemental clerk’s transcript consisting of the court’s order of October 11, 2007.
DISCUSSION
A. Adoptability Finding
Father’s principal contention on appeal is that the juvenile court’s adoptability finding is not supported by the record because H.C. is “something of a problem child, having problems with inappropriate sexual behavior for a little girl, serious anger control issues involving throwing chairs and hitting others at school, disruptiveness, defiance, outbursts of raising her voice, growling and hissing, especially at other students who got too close, and bed wetting.” According to father, such behavior shows H.C. was “well into the category of ‘special needs child’ due to what might politely be described as her hyperactivity, and she needed a highly structured environment.” Father further asserts that “nothing in the record suggests that H.C.’s behavioral problems had been resolved . . . or whether the prospective adoptive parents were in a position to cope with those problems. Based on that assertion, father speculates that “it could well be necessary to remove [H.C.] from the prospective adoptive home, despite the prospective adoptive parents desire to provide a home for her, in which case she would become a legal orphan.” We, however, do not share father’s alarmist and skewed reading of the record.
Initially, we note that to “terminate parental rights and order the child placed for adoption,” the trial court must find by clear and convincing evidence “it is likely the child will be adopted.” (§ 366.26, subd. (c)(1).) “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.]” (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) However, “[t]he ‘clear and convincing’ standard is for the edification and guidance of the juvenile court. It is not a standard for appellate review. (Citation.) ‘ “ ‘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.’ [Citations.]” (Citation.) ‘Thus, on appeal from a judgment required to be based upon clear and convincing evidence, “the clear and convincing test disappears . . . [and] the usual rule of conflicting evidence is applied, giving full effect to the respondent’s evidence, however slight, and disregarding the appellant’s evidence, however strong.” [Citation.]’ (Citations.)” (In re J.I. (2003) 108 Cal.App.4th 903, 911.)
Moreover, on this record we reject the notion that H.C. falls into the category of those children who, like the child in In re Carl R. (2005) 128 Cal.App.4th 1051, with “cerebral palsy, severe quadriparesis, a seizure disorder, and an uncontrolled and severe psychomotor delay,” will always require total care because of disabilities. (Id. at p. 1058.) Such children, who are “specifically adoptable and [] will need total care for life” are therefore “at high risk of becoming a legal orphan if parental rights are terminated and the prospective adoptive family is later determined to be unsuitable.” (Id. at p. 1062.) In those cases, “[t]o avoid rendering a total needs child a legal orphan, the assessment of the adoptability of such a child must necessarily include some consideration of whether the prospective adoptive parents can meet that child’s needs, since if the prospective adoptive parents cannot meet the child’s needs, the child cannot properly be found to be adoptable.” (Ibid., italics added.) No such specific consideration of the prospective parents’ ability to meet H.C.’s needs was required in this case, however, because H.C. was a generally adoptable child, not a specifically adoptable child as in In re Carl R., supra, 128 Cal.App.4th 1051. Indeed, in the case of the generally adoptable child, the question of whether prospective adoptive parents are even available is irrelevant to the adoptability findings. (In re Scott M. (1993) 13 Cal.App.4th 839, 843; In re Sarah M., supra, 22 Cal.App.4th at p. 1651; In re T.S. (2003) 113 Cal.App.4th 1323, 1329.)
Nor did father’s counsel contend at the section 366.26 hearing that H.C.’s behavioral problems amounted to “special needs” that rendered her specifically adoptable and precluded a finding of general adoptability. Father’s counsel merely stated: “The other thing that needs to be considered is that H.C. does have behavioral issues that are detailed to some extent in the adoption report. . . . This is, as the Court knows, a large home with seven kids. . . . [¶] . . . [¶] . . . H.C. has not been in this home very long at all. She’s been there several months. She’s got some pretty significant issues. Her brother isn’t particularly stable. This is a large home that I don’t know is going to be able to cope with these two children. And so both children are going to be out of luck if this placement blows and we terminate parental rights prematurely.” As is clear from the context, counsel’s comments were addressed to the suitability of the prospective adoptive parents and whether they could successfully provide a permanent home for H.C. and her brother, not an argument that H.C. is so disturbed that she is not generally adoptable. (See In re Carl R., supra, 128 Cal.App.4th at pp. 1061-1062 [stating that “the suitability of the prospective adoptive family does not constitute a legal impediment to adoption and is irrelevant to the issue of whether a child is likely to be adopted” and that “[i]f an inquiry into the suitability of prospective adoptive parents were permitted at the section 366.26 hearing, many hearings would degenerate into subjective attacks on those prospective adoptive parents ― a result not envisioned by the statutory scheme”] [citations omitted].)
Furthermore, there is substantial record evidence supporting the juvenile court’s finding that H.C. is generally adoptable. The Department’s adoption assessment of June 26, 2007, concluded “[a]fter a thorough assessment” that H.C. is adoptable. The assessment noted that the prospective adoptive parents “are developing a commitment to the child and have expressed a desire to adopt. . . . The preliminary assessment indicates this family appears suitable for adoption of H.C. This family has an approved home study.” Nor did the assessment ignore or attempt to gloss over H.C.’s behavioral problems at school. The assessment acknowledged that although “H.C. had an exceptionally difficult week in mid-February of this year[,]” she “made academic progress throughout the kindergarten year in all areas. She received support services in Reading Title 1 and Math Title 1. H.C.’s mental and emotional status appears to be stable. H.C. was participating in therapy one time a week at Remi Vista but this was recently changed to bi-monthly appointments. . . . According to her therapist, . . . H.C. has increased her ability to moderate her own emotions. H.C. was described as initially unwilling to answer direct questions about her birth family. She would grimace and move on without answering. Over the past year H.C. has become less defiant and is throwing fewer temper tantrums in all environments.”
The adoption assessment suggests that H.C.’s behavioral problems were at their worst in February 2007 when she was clearly going through a bad patch. Not only is that entirely understandable for a six-year old who’d had, as the court put it at the section 366.26 hearing, “a very challenging life until this point,” but it is corroborated by other evidence. The November 2006 status review stated that H.C. “has made tremendous progress in her present placement.” It also noted H.C.’s Kindergarten teacher had reported that “H.C. is a delight in the classroom.” The Department’s adoption specialist Teddee-Ann Boylan noted in her letter of October 25, 2006, that H.C.’s behavioral issues “have been greatly reduced” on account of the one-on-one care provided by her foster parent. By the time of the March 2007 status review, however, it was reported that H.C. had behaved badly in school in February and H.C.’s teacher stated that her behavior deteriorated in February 2007. The CASA opined that H.C.’s poor behavior in February was linked to mother’s visitation schedule and mother’s inconsistent performance on visitation. And subsequent reports bear out the view that such violent and disruptive behavior was more of an aberration than the norm: The section 366.26 report states, “H.C. is a happy six year old little girl,” who has sibling conflicts with her brother typical for children of that age. It notes that H.C. receives counseling services that “continue to benefit H.C.” and that “[p]sychotropic medications are not appropriate” for H.C. The Department’s June 2007 adoption assessment states that “H.C.’s mental and emotional status appears to be stable” and counseling sessions had recently been reduced from once a week to bi-monthly. The CASA’s assessment in July 2007 was that overall H.C. had “grown physically, intellectually and emotionally” during the past year, and H.C.’s counselor reported to CASA that she had seen “many positive changes in H.C.” during that time.
In sum, we conclude that the juvenile court’s adoptability finding is supported by substantial evidence. (Cf. In re J.I. (2003) 108 Cal.App.4th 903, 913 [mother’s argument that the child “had some nightmares, depression, and oppositional behavior, and had some regressive behavior when disciplined” did not amount to significant evidence that [child] was not adoptable].)
B. Continuance
Father next contends that “[i]n the absence of additional evidence regarding H.C.’s adoptability,” the juvenile court should not have terminated parental rights but rather should have continued the case for 180 days pursuant to section 366.26, subdivision (b)(2). He further asserts that “[t]his would have given both H.C. and the prospective adoptive parents time to see if in fact she would fit into their home permanently, and would have avoided what appears to be a rush to judgment to get H.C. adopted.”
This sort of trial placement procedure urged by father has no place in the statutory scheme. At the time of the section 366.26 hearing, subdivision (b)(2) provided: “On making a finding under paragraph (3) of subdivision (c), identify adoption as the permanent placement goal and order that efforts be made to locate an appropriate adoptive family for the child within a period not to exceed 180 days.” (§ 366.26, subd. (b)(2) (2007).) Thus, subdivision (b)(2) is not triggered unless the court first makes a finding under subdivision (c)(3) that “the child has a probability for adoption but is difficult to place for adoption and there is no identified or available prospective adoptive parent, [in which case] the court may identify adoption as the permanent placement goal and without terminating parental rights, order that efforts be made to locate an appropriate adoptive family for the child within a period not to exceed 180 days.” (§ 366.26, subd. (c)(3) (2007).)
Here, the court made no finding under subdivision (c)(3). Rather, the court made a finding under subdivision (c)(1) that there was clear and convincing evidence H.C. will likely be adopted. We have concluded that finding is supported by substantial evidence and in doing so implicitly rejected father’s suggestion that H.C. is somehow “difficult to place for adoption.” (§ 366.26, subd. (c)(3) (2007).) Thus, father’s contention that the court should have continued the matter under subdivision (b), supra, is entirely without merit.
Accordingly, we deny as moot respondent’s Motion to Take Evidence After the Judgment (filed Jan. 14, 2008) that H.C. has in fact remained in the prospective adoptive placement since the time of the section 366.26 hearing and that the prospective parents have confirmed they will adopt. We also note there was no rush to judgment here, as suggested by father. The September 2007 permanency review hearing was actually beyond the 18 month period contemplated by statute (§ 366.22, subd. (a)), and the juvenile court held full and fair evidentiary hearings on father’s section 388 petition and the termination of parental rights under section 366.26.
DISPOSITION
The orders of the juvenile court are affirmed.
We concur: Pollak, Acting P. J., Siggins, J.