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In re Julian M.

California Court of Appeals, Fourth District, First Division
Sep 10, 2008
No. D052865 (Cal. Ct. App. Sep. 10, 2008)

Opinion


In re JULIAN M., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. TERRY W., Defendant and Appellant. D052865 California Court of Appeal, Fourth District, First Division September 10, 2008

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of San Diego County, No. NJ12223A, Thomas M. Fiorello, Judge.

O'ROURKE, J.

Terry W. appeals an order terminating parental rights to his son, Julian M., under Welfare and Institutions Code section 366.26. Terry contends insufficient evidence supports the court's finding Julian was likely to be adopted within a reasonable time.

Unless otherwise specified, further statutory references are to the Welfare and Institutions Code.

FACTUAL AND PROCEDURAL BACKGROUND

Julian M. is now 13 years old. His first year was marked by exposure to ongoing violence between his parents, Terry W. and Deana M. At the age of one, Julian could not sit by himself. A paternal aunt, Melissa E., became concerned about Julian's lack of development and gained temporary custody. Melissa cared for Julian until early 1997, when he was approximately 18 months old. She then returned him to Terry and Deana, who later separated.

In February 1998 Deana had another child with a different partner. When the baby was about three months old, she asked Melissa to resume caring for Julian, who was then three years old. Deana said Julian tried to smother the baby with a pillow and later tried to strangle him, hit Deana in the face and attempted to stab his grandmother with a knife.

Julian returned to Melissa's care in South Carolina. For a time, he saw Terry on weekends. Julian continued to display violent rages and out-of-control behaviors. Melissa obtained psychological services for Julian, who was diagnosed with "attachment disorder, organized, chaotic, resistant and anxious" and attention deficit hyperactivity disorder (ADHD). Julian was placed on medication. About September 2001 Melissa returned Julian to Deana, stating Julian was constantly acting out and her family could not function with him in the home.

In mid-October 2001, Deana informed a social worker with the San Diego County Health and Human Services Agency (Agency) that six-year-old Julian hit and sexually abused his three-year old brother. Deana did not believe she was capable of meeting Julian's needs and protecting her younger child. She voluntarily placed Julian in foster care.

After Julian became a dependent of the juvenile court, the Agency struggled to find a proper placement and appropriate treatment for him. From January 2002 to April 2003 Julian was unsuccessfully placed in five foster care homes. Family reunification services were not successful. The Agency did not consider Julian adoptable due to his aggression, defiance, emotional difficulties and uncontrollable behavior. In June 2003 the court determined Julian was not adoptable and there was no one willing or able to accept legal guardianship. In April 2003 Julian was placed in a New Alternatives Group Home that offered a higher level of care than was available at Polinsky Children's Center. At the request of New Alternatives Group Home, Julian was placed at New Alternatives Herrick Center (Herrick) in September. During the first quarter of 2004, seven-year-old Julian had 18 incidents of assaultive behaviors and 24 other serious incidents, including hitting, kicking and throwing objects at staff and destroying property. He frequently exhibited rage and anger.

In May 2004 Julian threatened to harm himself and was hospitalized. He was diagnosed with Oppositional Defiant Disorder, ADHD, Reactive Attachment Disorder and parent-child relational problem. Julian had a very high IQ; however, he distorted or misinterpreted his environment and as a result displayed unusual or bizarre behaviors. He reported "blanking out" during rages. Julian was severely depressed and in emotional distress. He did not qualify for the diagnosis of a psychotic disorder. The psychologist recommended medication evaluation, monitoring and management, individual therapy, and an evaluation to rule out the possibility of a neurological disorder.

By December 2004 Julian showed some general improvement but continued to struggle with problem behaviors. He enjoyed weekly visits with a mentor assigned through Foster Youth Mentor Services.

Melanie W., a paternal aunt, contacted Julian. Melanie was a licensed foster parent in South Carolina. In 2002 she asked the Agency to place Julian with her through the Interstate Compact on the Placement of Children (ICPC). Her request was denied because of Deana's reports that Julian had sexually abused his younger brother. Because Julian had not exhibited any other inappropriate sexual behaviors during his placement in group care, in December 2005 the Agency initiated a second ICPC home study of Melanie's home.

Julian visited Melanie at Thanksgiving 2005. Melanie came to San Diego in June 2006 to spend a week with Julian. She requested legal guardianship. However, South Carolina denied Melanie's second ICPC home study due to lack of space in her home. To accommodate Julian, Melanie moved into a larger home in North Carolina. She maintained consistent telephone contact with Julian, who said he would like to live with her. The Agency's initiated a third ICPC study in North Carolina but the placement was not approved.

No reason for the denial is given in the Agency's reports.

Julian's last contact with his mother was in December 2005. Julian saw his father at Thanksgiving during his visit in South Carolina in 2005. Terry maintained sporadic telephone contact with Julian.

In March 2006 Herrick reported that Julian was noticeably more agitated on a daily basis throughout the quarter. His aggressive incidents increased. Through therapy, Julian had positive insights into his behaviors. Terry reestablished supervised telephone contact with Julian and was highly supportive of his progress. John K., Julian's mentor, maintained regular contact with Julian and took him off grounds to amusement parks, shopping and other activities.

The Agency placed Julian with John in February 2007. The Agency reported that Julian continued to make "significant strides" academically and behaviorally but still struggled with problem behaviors. Julian was doing well in his foster home. The Agency reported "they are very interested in pursuing adoption."

The Agency was not opposed to Julian's proposed adoption but believed that it was too soon to start adoption proceedings. By July 2007 the Agency dropped its opposition to proceeding and the court set a section 366.26 hearing.

Terry appeared in court for the first time on November 27, 2007 and requested court-appointed counsel. The section 366.26 hearing was held on February 21, 2008. The court admitted the Agency's reports into evidence.

The Agency recommended the court terminate parental rights and order a permanent plan of adoption. In its permanency planning assessment, the Agency reported that 12-year-old Julian was cognitively and physically "on target" but was emotionally delayed. When Julian did not "get his way," he had tantrums, became verbally abusive, destroyed property and refused to follow directions. Julian's teacher stated that Julian had difficulty following directions. She could not impose any consequences that would motivate Julian to behave.

In October 2007 Julian's behavior regressed when he was taken off one of his medications. During one incident, Julian kicked in John's bedroom door and yelled obscenities at John, who sought emergency assistance. Julian's behavior improved when he resumed taking the medication.

The Agency reported that Julian would be considered difficult to place were John not willing to adopt him. In its permanency planning assessment, the Agency reported that John was single and had known Julian for more than three years as a mentor. He lived in a family type neighborhood and was employed. John understood his responsibilities as an adoptive parent. He sought appropriate services to meet Julian's needs. John wanted to adopt Julian to provide him "with some normalcy and stability." The Agency stated that John had been "cleared for placement" and was in the process of completing the adoption home study. The adoptive social worker opined that the home study would be approved.

Julian thought the proposed adoption was "cool" and said there was nowhere else he would rather live. The Agency reported that Terry appeared to care for and was concerned about Julian. Because their contact had been so limited, the social worker believed Terry and Julian did not have a parent-child relationship.

The court denied the parents' motions to continue the section 366.26 hearing until the Agency completed John's home study. Terry and Deana objected to the finding that Julian was likely to be adopted within a reasonable time (adoptability finding) but did not cross-examine the social worker or present affirmative evidence.

Without comment, the court adopted the recommended findings and orders in the Agency's report and terminated parental rights.

APPELLATE PROCEEDINGS

On July 2, 2008, the Agency filed a motion to augment the record on appeal with a postjudgment addendum report it recently prepared for a review hearing scheduled for August 20, 2008. The Agency also requests this court dismiss this appeal as moot.

Terry asserts the augmentation of the record with postjudgment hearsay contravenes In re Zeth S. (2003) 31 Cal.4th 396, 405, and would deny him due process protections afforded by trial procedures, including the right to cross-examine and confront witnesses, conduct an independent investigation, rebut adverse information and present additional evidence. Terry opposes the Agency's motion to dismiss and asserts the appeal is not moot. In view of Terry's well-stated concerns, we deny the Agency's motions to augment the record and to dismiss the appeal as moot.

DISCUSSION

Terry contends the evidence before the court at the time of the section 366.26 hearing was insufficient to support the adoptability finding. He maintains when a child is only specifically adoptable, as here, the assessment report "must necessarily include some consideration of whether the prospective adoptive parents can meet that child's needs." (In re Carl R. (2005) 128 Cal.App.4th 1051, 1062.) Terry argues Julian's significant mental health history, his recent aggressive behaviors and the incomplete home study of the prospective adoptive parent undermine the finding of adoptability.

Terry also argues the court abused its discretion when it denied his request to continue the section 366.26 hearing. Because we reverse the court's adoptability finding, we need not consider this issue.

The Agency contends Terry does not meet his burden on appeal to show the adoptability finding is not supported by substantial evidence. The Agency argues the evidence that Julian was placed in a home with a caregiver who knew him well and wanted to adopt him, coupled with the evidence there were more than 30 families that had expressed an interest in adopting a child like Julian, including one family in San Diego County, is sufficient on review to support the court's adoptability finding.

A finding of adoptability requires "clear and convincing evidence of the likelihood that adoption will be realized within a reasonable time." (In re Zeth S., supra, 31 Cal.4th at p. 406.) The question of adoptability usually focuses on whether the child's age, physical condition and emotional health make it difficult to find a person willing to adopt that child. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.)

If the child is considered generally adoptable, we do not examine the suitability of the prospective adoptive home. (In re Scott M. (1993) 13 Cal.App.4th 839, 844.) However, if a child is deemed adoptable based solely on 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.) The juvenile court should also explore a child's feelings toward his or her parents, foster parents and prospective adoptive family. (In re Christopher L. (2006) 143 Cal.App.4th 1326, 1334; see § 366.26, subd. (h)(1).)

In determining whether a child is adoptable, the court is required to consider the assessment report and receive other evidence the parties may present. (§ 366.26, subd. (b); In re Valerie W. (2008) 162 Cal.App.4th 1, 11-12; see §§ 361.5, subd. (g), 366.21, subd. (i), 366.22, subd. (b); 366.3, subd. (h); see also § 366.26, subd. (c)(1).) In its assessment report, the Agency is required to address seven specific subjects, including the child's medical, developmental, scholastic, mental and emotional status. (§ 366.21, subd. (i).) In addition, the assessment report must include an analysis of the likelihood the child will be adopted if parental rights are terminated. (§ 366.21, subd. (i)(1), (B), (C), (G); In re Crystal J. (1993) 12 Cal.App.4th 407, 411.) It must also contain:

"A preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent or legal guardian, particularly the caretaker, to include a social history including screening for criminal records and prior referrals for child abuse or neglect, the capability to meet the child's needs, and the understanding of the legal and financial rights and responsibilities of adoption and guardianship . . ." (§ 366.21, subd. (i)(1)(D).)

"The relationship of the child to any identified prospective adoptive parent or legal guardian, the duration and character of the relationship, the motivation for seeking adoption or guardianship, and a statement from the child concerning placement and the adoption or guardianship . . ." (§ 366.21, subd. (i)(1)(E).)

The assessment report is "a cornerstone of the evidentiary structure" upon which the court, the parents and the child are entitled to rely. (In re Crystal J., supra, 12 Cal.App.4th at p. 413.) If an assessment report is cursory or incomplete, it may call into question the adequacy of the evidence supporting an adoptability finding. (In re Valerie W., supra, 162 Cal.App.4th at p. 14.)

On review, we determine whether the record contains substantial evidence from which the court could find clear and convincing evidence that the child was likely to be adopted within a reasonable time. (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1561-1562; see also Zeth S., supra, 31 Cal.4th at p. 406.) The evidence must be sufficiently strong to command the unhesitating assent of every reasonable mind. (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205-1206.) We give the court's adoptability finding the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of the judgment of the trial court. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576; In re B.D. (2008) 159 Cal.App.4th 1218, 1231-1232.)

We are not persuaded by the Agency's argument the number of families generally interested in adopting "a child like Julian" supports the adoptability finding. (In re B.D., supra, 159 Cal.App.4th at p. 1233 citing In re Asia L. (2003) 107 Cal.App.4th 498, 512 [children's emotional and psychological development present a potential obstacle to adoption and required a specialized placement]; In re Amelia S. (1991) 229 Cal.App.3d 1060, 1065 [reports indicating a few families were considering adoption does not constitute clear and convincing evidence to establish the likelihood of adoption]; In re Brian P. (2002) 99 Cal.App.4th 616, 624 [a social worker's conclusion by itself is insufficient to support an adoptability finding].) There is no evidence in this record to show that the foster families generally referenced in the Agency's report had been informed of Julian's needs and had the capability to meet those needs. (See §§ 366.21, subd. (i)(1)(D), 366.22, subd. (b)(1)(D).)

We also conclude the assessment report was inadequate to support the finding that Julian was specifically adoptable. The Agency's assessment report was cursory and incomplete. (In re Valerie W., supra, 162 Cal.App.4th at p. 14.) For example, in the required section entitled "Duration and Character of Relationship with Child(ren)," the Agency merely stated "the prospective adoptive father has known Julian for over three years," and did not describe the character of the relationship. We also note that Julian had not had a psychological evaluation since May 2004. In October 2007 John required emergency assistance to handle Julian's explosive temper. On this record, the court did not have a factual basis on which to conclude the Agency properly identified Julian's needs, fully informed John of those needs and assessed John's capability to meet Julian's needs without the assistance and structure of the juvenile court.

We are also concerned by the court's decision to terminate parental rights while the adoptive home study was pending. Had the Agency's assessment been more substantive, this factor may not have been at issue here. (In re Brandon T. (2008) 164 Cal.App.4th 1400, 1410 [lack of adoptive home study did not constitute an impediment to adoption where the agency's assessment was complete].) In In re Dakota H. (2005) 132 Cal.App.4th 212, a case involving a child with exceptional needs, as here, this court noted with approval that the trial court "properly and carefully assessed [the child's] best interests within the context of his special needs." (Id. at p. 229.) The trial court delayed the section 366.26 hearing to request more information about the proposed adoptive placement before determining the child's permanency plan. The Agency then provided the court with extensive information about the child's needs, the capability of the prospective adoptive parent to meet those needs and additional information about the suitability of the prospective adoptive home. (In re Dakota H., supra, at pp. 221, 230-231.)

Similarly Julian's history and circumstances warrant a comprehensive assessment prepared in strict compliance with statutory requirements. (In re Valerie W., supra, 162 Cal.App.4th at pp. 11-12.) We note the trial court did not make any statements on the record concerning its finding of adoptability. We emphasize in other circumstances, these deficiencies may not require reversal. Here, reversal is required to ensure Julian's appropriate placement in a home capable of meeting his needs.

DISPOSITION

The order terminating parental rights is reversed. The matter is remanded to the juvenile court with directions to order the Agency to complete an assessment in compliance with section 366.3, subdivision (h). The court is further directed to hold a new hearing under section 366.26 in which it shall fully consider the assessment report in determining Julian's permanency plan and make findings of fact on the record.

WE CONCUR: McDONALD, Acting P. J., McINTYRE, J.


Summaries of

In re Julian M.

California Court of Appeals, Fourth District, First Division
Sep 10, 2008
No. D052865 (Cal. Ct. App. Sep. 10, 2008)
Case details for

In re Julian M.

Case Details

Full title:In re JULIAN M., a Person Coming Under the Juvenile Court Law. SAN DIEGO…

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

Date published: Sep 10, 2008

Citations

No. D052865 (Cal. Ct. App. Sep. 10, 2008)