Opinion
E041424
5-2-2007
In re KIMBERLY G. et al., Persons Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. GUILLERMO G., Defendant and Appellant.
Sharon S. Rollo, under appointment by the Court of Appeal, for Defendant and Appellant. Joe S. Rank, County Counsel, and Sophia H. Choi, Deputy County Counsel, for Plaintiff and Respondent. Jacquelyn E. Gentry, under appointment by the Court of Appeal, for Minors.
NOT TO BE PUBLISHED
I. INTRODUCTION
Guillermo G. is the father of Kimberly G., Jesse G., and Jovani G. The mother of the children is not a party to this appeal. Father appeals the juvenile courts September 19, 2006, order terminating parental rights and placing the children for adoption. (Welf. & Inst. Code, § 366.26.) He contends that insufficient evidence supports the courts finding that the children were adoptable. We conclude that substantial evidence supports the adoptability finding. Accordingly, we affirm the order.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
II. FACTS AND PROCEDURAL HISTORY
A. Background
This is fathers second appeal. In his first appeal in case No. E038324, father appealed an April 25, 2005, section 366.26 order terminating parental rights and placing the children for adoption. He argued that the adoption assessment of the Riverside County Department of Public Social Services (DPSS) was statutorily insufficient and that insufficient evidence supported the courts finding that the children were likely to be adopted within a reasonable time. We agreed with father and reversed the order. We remanded the matter to the juvenile court with directions to (1) direct DPSS to prepare an adoption assessment meeting the requirements of section 366.21, subdivision (i), and (2) hold a new section 366.26 hearing and consider the childrens wishes regarding adoption.
In a February 27, 2007, order, we granted fathers request that we take judicial notice of the record in case No. E038324. On our own motion, we also take judicial notice of our unpublished opinion in case No. E038324 filed on March 7, 2006. (Evid. Code, §§ 452, 459.)
Following remand, the juvenile court set a new section 366.26 hearing and ordered DPSS to prepare a new adoption assessment. The second section 366.26 hearing was ultimately held on September 19, 2006. At that time, Kimberly was seven years old, Jesse was six, and Jovani was two. The court again found that all three children were likely to be adopted, that none of the statutory exceptions to the adoption preference applied, and terminated parental rights. This, the fathers second appeal, followed.
B. Events Preceding Fathers First Appeal
At the jurisdictional/dispositional hearing on March 30, 2004, the children were declared dependents of the court, after the court sustained allegations that mother and Jovani tested positive for amphetamine at the time of Jovanis birth in March 2004; fathers whereabouts were unknown; he was not a member of the childrens household; and he had failed to provide for the children. (§ 300, subds. (b) [failure to protect] and (g) [no provision for support].) The court also found that the children were part of a "sibling set."
DPSS reported that mother and Kimberly had also tested positive for amphetamine and methamphetamine at the time of Kimberlys birth in 1998, and an allegation of "severe neglect" was substantiated by San Diego Child Protective Services. During the San Diego investigation, mother went to Mexico and left Kimberly in the care of a relative. Jesse was born in Mexico in 2000, and it is unknown whether he was also born drug exposed.
Father reportedly had a "criminal history of sales of a controlled substance, for which he was previously in prison for [five] years," and the children would be at risk in his care. The court found father was an alleged father, and because his whereabouts were unknown at the time of the jurisdictional/dispositional hearing, the court ordered DPSS not to provide reunification services to him. (§ 361.5, subd.(b)(1).) Supervised visitation was ordered for both parents.
Section 361.5, subdivision (b)(1) provides that reunification services need not be provided to a parent or guardian when "[t]he whereabouts of the parent or guardian are unknown."
The children were placed with their paternal aunt, Jovana G., in March 2004 and were still in her care at the time of the six-month review hearing in October 2004. As of that time, the whereabouts of both parents were unknown. Mother had last visited the children in April 2004. Father made arrangements to visit the children on September 4, 2004, but did not show up or call to cancel the visit. The court terminated mothers services and set a section 366.26 hearing.
In January 2005, DPSS learned from the children that their paternal aunt, Jovana G., had been allowing father unsupervised visits with the children without DPSSs consent. As a result, DPSS removed the children from the paternal aunt and placed them with another relative, their paternal great-aunt, Claudia L. Claudia L. said she was willing to adopt the children if they could not be safely returned to the parents. As of February 2005, the whereabouts of mother remained unknown. Father had not contacted DPSS to arrange visitation.
In a section 366.26 report filed February 10, 2005, DPSS recommended terminating parental rights and placing the children for adoption. Mother still had not visited the children since April 2004, and father had still not contacted DPSS to arrange visitation. Regarding the childrens mental and emotional status, the report stated, without elaboration, "Kimberly is currently seeing Donna Wylie" and "Jesse has been referred to therapy."
Father appeared in court for the first time on the date scheduled for the section 366.26 hearing, February 25, 2005. He said he had been in Mexico and was previously unaware of the dependency proceedings. His counsel informed the court that father would be filing a section 388 petition. At the request of DPSS, the court continued the section 366.26 hearing to April 25, 2005. At the April 25, 2005, section 366.26 hearing, the court summarily denied fathers section 388 petition, terminated parental rights, and placed the children for adoption. Father successfully appealed that order.
C. Events Following Fathers First Appeal
On August 1, 2005, while fathers appeal of the April 25, 2005, section 366.26 order was pending, DPSS reported that the children were still living with their paternal great-aunt, Claudia L., with whom they were placed in January 2005. The report stated that this continued to be an appropriate placement, and the children "appear[ed] to be thriving." Regarding the childrens development, DPSS reported that Kimberly and Jesse had been in therapy and reports had been requested. Jovani did not attend therapy due to his young age. Neither parent had visited with the children during this reporting period or communicated with DPSS, and their whereabouts were unknown. At the August 22, 2005, post-permanency hearing, the court continued with the plan of adoption.
On August 26, 2005, the children were removed from Claudia L.s home due to "substantiated allegations of physical abuse." Six-year-old Kimberly reported that Claudia L. had kicked her and hit her in the face, causing her nose to bleed, and said she would also hit one-year-old Jovani with a sandal or slipper. Five-year-old Jesse independently confirmed that Claudia L. had hit Kimberly, and that she "always hits me and her." Kimberly later described being hit "20 times" by Claudia L. Claudia L. denied using corporal punishment on any of the children. She said the children lied and this was another one of their lies.
After the children were removed from the home of Claudia L., they were placed in foster care with Ms. C. By early September 2006, DPSS received a referral alleging that Jesse had accused Ms. C. of hitting him with a sandal. When interviewed, Jesse and Kimberly denied that Ms. C. had ever hit them; they said it was Claudia L. who had hit them with a sandal. When informed of the possible misunderstanding, Ms. C. said she wanted the children removed from her home because she did not want them making up lies about her.
The children were then placed with another foster mother, Ms. J. The social worker met with Ms. J. and the children to see how the placement was going. During the meeting, Jesse began hitting Kimberly in the face, and continued to fight with each other after Ms. J. intervened and told them to stop. As Kimberly and Jesse continued fighting, they fell into their younger brother, Jovani, and knocked him to the floor. The social worker observed that Kimberly appeared to be very "bossy," and was very "parentified."
The children were abruptly removed from Ms. J.s care on October 24, 2005, after Kimberly called the police to report that Ms. J. had left them without adult supervision at around 11:30 p.m. on October 23. The allegation was substantiated. Following their removal from Ms. J.s care, the children were placed in separate foster homes.
In December 2005, Kimberlys new foster mother asked that she be removed from her care. Kimberly had problems getting along with her caregivers four-year-old daughter, and there was an incident involving Kimberly sitting on the lap of the caregivers husband, which made the husband feel uncomfortable. Kimberlys therapist was "quite sure" Kimberly had been prematurely exposed to sex through seeing her mother have sex with men in front of her. The social worker attempted to place Kimberly in "Enriched Foster care" due to her behavioral problems.
In mid-December 2005, Kimberly was placed in the childrens current fos/adopt home with Mr. and Mrs. A. Jovani was placed in the home in October 2005, and Jesse joined his siblings in February 2006. The children were still living with the A.s at the time of the current September 19, 2006, section 366.26 hearing.
D. The September 19, 2006, Section 366.26 Hearing
According to a section 366.26 report filed June 7, 2006, the childrens prospective adoptive parents, Mr. and Mrs. A., were bonded to the children and wished to adopt them. Kimberly and Jesse both expressed a desire to be adopted by the A.s Jovani was still too young to be interviewed concerning his wishes; however, all of the children "were observed to be very comfortable in their home environment and appeared to show a great attachment and bond to the prospective adoptive parents."
The June 7 report further stated that Kimberly and Jesse were seeing a therapist on a semi-monthly basis. They were engaged in cognitive behavioral and play therapy, which were designed to teach limits, distinguish between the truth and a lie, and develop trust. They had "significantly reduced their `acting out behavior" since they began in therapy. It was believed that their "behaviors of lying, manipulation, [and] physical fights with each other" and Kimberlys "inappropriate touching" resulted from the stress of their removal from their mothers care and their subsequent removals from successive relative and foster care placements.
The report also stated, since the children began in therapy while living in separate foster homes, there was "an observed control and substantial reduction in lying." And, since being placed with the A.s, Kimberly and Jesse had shown improvement in their academic skills. Previously, they had been struggling academically. They no longer fought with each other in their current placement. There had been no contact with the parents during this reporting period.
At the scheduled section 366.26 hearing on August 21, 2006, father, his wife (not mother), and several paternal relatives were present. County counsel requested a continuance of two days because DPSS reports did not include criminal background information on the A.s. The minors counsel also wished to continue the matter so that Kimberly and Jesse could be present. The court granted the request.
On August 23, Kimberly and Jesse were present. Father, his wife, and various paternal relatives were also present. The matter was continued to September 19 in order to procure the criminal background information on the A.s Pending the hearing, fathers counsel requested visitation for father, noting parental rights had been reinstated and there was a prior visitation order in place.
The minors counsel noted that the children were comfortable with father and said they wanted to visit him and their paternal grandmother and cousins. Counsel expressed concern, however, that the visits not be frequent because they might disrupt the childrens current placement. The court ordered supervised visitation for father and paternal relatives once every two weeks.
According to an addendum report filed September 15, the prospective adoptive father, Mr. A., was arrested in 1993 for inflicting corporal injury on a spouse and was ordered to participate in domestic violence classes. Mr. A. completed the classes in 1994, and had no other criminal history. Mr. A. and his former wife were divorced in 1994 after a marriage of 13 years.
Mr. A. explained that the domestic violence incident occurred when he and his ex-wife, not the current Mrs. A., "got in a verbal argument which quickly escalated and he admitted to `pushing her from behind, by her shoulders." His ex-wife called police and he was arrested and released. He claimed there was no hitting or throwing of objects during the incident, and he denied any past incidents of domestic violence in the home. He said he was glad he took responsibility for his actions because he was able to learn a lot from his participation in court-ordered domestic violence classes.
Mr. and Mrs. A. were married in 1997. Mrs. A. said she and Mr. A. had never been involved in any physical altercations and rarely have arguments. She described Mr. A. as a "very respectful and supporting husband" who has never had difficulty controlling his actions. Accordingly, the social worker concluded that the 1993 incident was not presenting a problem within the family.
In the addendum report, DPSS recommended terminating parental rights, placing the children for adoption, and that visitation with father be stopped. Jesse said he did not want to live with his father because "he hits me," nor did he want to visit his father. Instead, he wanted Mr. and Mrs. A. to be his "mom and dad." The report also stated that Kimberly "expressed fear of her father . . . due to past history of abuse and she is experiencing anxiety as a result of his recent contact." Kimberly and Jesse also said they did not want to "see their father."
At the section 366.26 hearing on September 19, 2006, the court received into evidence DPSSs section 366.26 report filed on June 7, 2006, including the "Preliminary Adoption Assessment," and the addendum report filed on September 15. The court also read and considered a letter from Novell & Novell Counseling Services dated September 11.
According to the letter, Kimberly and Jesse "stated during session that they do not want to be with their biological father due to issues of physical and emotional safety." The letter also stated that Kimberly and Jesse had been making progress during treatment.
Fathers counsel argued that the court should not terminate parental rights because the prospective adoptive father had a history of domestic violence, and father "would prefer that his children not be in a home with that history." Regarding the visitation, counsel argued that the children appeared to be very happy to see their father on August 23, and the letter from the childrens therapist did not contain "any useful information."
As noted, at the close of the hearing, the court found that all three children were likely to be adopted, that none of the statutory exceptions to the adoption preference applied, and terminated parental rights. Father appealed.
III. DISCUSSION
Father argues "[e]ven after remand . . . and despite supplemental social studies and hearings, substantial evidence did not support the juvenile courts [renewed] finding that the children were adoptable." We conclude that substantial evidence supports the courts finding that all three children were likely to be adopted.
A. Standard of Review
In order to terminate parental rights under section 366.26, a juvenile court must find by clear and convincing evidence "that it is likely the child will be adopted." (§ 366.26, subd. (c)(1).) On appeal, we must determine whether the record contains substantial evidence from which a reasonable trier of fact could have found, by clear and convincing evidence, that the child is likely to be adopted. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) We view the evidence in the light most favorable to the order, drawing every reasonable inference and resolving all conflicts in favor of the judgment. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.)
Indeed, "[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 respondents evidence, however slight, and disregarding the appellants evidence, however strong." [Citation.] [Citation.]" (In re J. I. (2003) 108 Cal.App.4th 903, 911.)
B. Applicable Law
"The issue of adoptability requires the court to focus on the child, and whether the childs age, physical condition, and emotional state make it difficult to find a person willing to adopt. [Citations.] It is not necessary that the child already be placed in a preadoptive home, or that a proposed adoptive parent be waiting. [Citations.] However, there must be convincing evidence of the likelihood that adoption will take place within a reasonable time. [Citation.]" (In re Brian P. (2002) 99 Cal.App.4th 616, 624.)
"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. (1994) 22 Cal.App.4th 1642, 1649-1650.)
C. Analysis
Father argues that, "because of the childrens [particularly Kimberlys and Jesses] history of multiple placements, behavioral problems, aggressiveness, and sexual acting out, their placement together in their present foster home for only four months at the time of the adoption assessment was too short a period to ensure that they would, in fact, be adopted." Father further argues, "they had had so many problems in their various placements, both individually and together, that they were not generally adoptable, only specifically adoptable." (Italics added.)
Furthermore, because the children were only specifically adoptable, and in view of the prospective adoptive fathers 1993 domestic violence arrest, father argues, "the better practice would have been to continue the section 366.26 hearing for the completion of an approved home study" because this would have revealed whether the A.s could adopt the children. (See In re Salvador M. (2005) 133 Cal.App.4th 1415, 1422 [the "better procedure" would have been to continue the section 366.26 hearing for a completed home study of grandmother, in view of courts finding that sibling relationship exception would have applied if someone other than grandmother adopted the child]; In re Sarah M., supra, 22 Cal.App.4th at p. 1650 ["Where the social worker opines that the minor is likely to be adopted based solely on the existence of a prospective adoptive parent who is willing to adopt the minor, an inquiry may be made into whether there is any legal impediment to adoption by that parent"].)
Father acknowledges that a completed home study is normally not a prerequisite to terminating parental rights and placing a child for adoption, because the focus at the section 366.26 hearing is on the child and whether the child is adoptable within a reasonable time; the focus is not on the prospective adoptive parents. Indeed, "`[T]he question of a familys suitability to adopt is an issue which is reserved for the subsequent adoption proceeding." (In re Marina S. (2005) 132 Cal.App.4th 158, 166, quoting In re Scott M. (1993) 13 Cal.App.4th 839, 844.) But because the children were only specifically adoptable, father argues that the juvenile court should have continued the section 366.26 hearing for a completed home study.
We disagree that the children were only specifically adoptable by the A.s. To the contrary, substantial evidence supported the juvenile courts implicit finding that all three children were generally adoptable as a sibling set.
At the time of the September 19, 2006, hearing, all three children were still very young, ages two, six, and seven. They had no physical conditions that might dissuade persons from adopting them. All three children had been living with their prospective adoptive parents, Mr. and Mrs. A., since February 2006. Kimberly and Jovani, were placed with the A.s in December 2005 and October 2005, respectively.
The A.s were consistently interested in adopting all three children, from and after the time the children came to live with them. Kimberly and Jesse both expressed a desire to be adopted by the A.s. Jovani was still too young to be interviewed concerning his wishes; however, all three children "were observed to be very comfortable in their home environment and appeared to show a great attachment and bond to the prospective adoptive parents."
Kimberlys and Jesses past behavioral problems were improving. Indeed, even before they began living with the A.s, their behavioral problems had begun to show improvement. By late 2005, there was "an observed control and substantial reduction in lying" and, after they began living with the A.s, they were no longer fighting with each other. More recently, they were beginning to verbalize and express their feelings to their therapist. Their academic skills were also improving.
Thus, the juvenile courts adoptability finding was not based solely on the A.s willingness to adopt the children. Instead, it was based on the childrens young ages and their desirable physical, mental, and emotional characteristics. Nor was the assessment period too short. Kimberlys and Jesses behavioral problems had improved substantially during the nearly one-year period preceding the section 366.26 hearing.
Accordingly, we conclude that substantial evidence supports the juvenile courts implicit finding that all three children were likely to be adopted within a reasonable time, either by the A.s or another family. (In re Sarah M., supra, 22 Cal.App.4th at p. 1650.) There was therefore no need to continue the section 366.26 hearing for the completion of home study. (In re Marina S., supra, 132 Cal.App.4th at p. 166.)
IV. DISPOSITION
The September 19, 2006, section 366.26 order terminating parental rights and placing the children for adoption is affirmed.
We concur:
Ramirez, P.J.
Hollenhorst, J.