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In re Laura C.

California Court of Appeals, Fourth District, Second Division
Sep 16, 2008
No. E045744 (Cal. Ct. App. Sep. 16, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of San Bernardino County Nos. J209445 & J209446, Kyle S. Brodie, Judge.

Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant.

Ruth E. Stringer, County Counsel, and Jeffrey L. Bryson, Deputy County Counsel, for Plaintiff and Respondent.


OPINION

Gaut, J.

Michael D. Randall, under appointment by the Court of Appeal, for Minors.

1. Introduction

All statutory references are to the Welfare and Institutions Code.

Father, Timothy C., appeals from a judgment terminating his parental rights to twin children, Laura and Timothy Jr. (§ 366.26.) Mother has relinquished her parental rights. Father contends there was insufficient evidence of adoptability. We uphold the judgment.

2. Factual and Procedural Background

The children were born in July 2001. The original dependency petition, filed in July 2006, alleged failure to protect and sexual abuse by the parents. Mother and her boyfriend were substance abusers and not taking care of the children.

Mother claimed that father had behaved sexually in 2001 toward her older, 13-year-old daughter, showing her pornography and demonstrating condom use with a dildo. Father was arrested for sodomizing an 11-year-old girl when she helped babysit the twins.

The children were first placed with father’s aunt and uncle. In November 2006, they had been placed with a different paternal aunt and uncle. Father was convicted of sex-related crimes, given a five-year prison sentence, and incarcerated in Tehachapi. His release date is October 2010.

In January 2007, the second paternal aunt and uncle asked to be relieved of the twins’ placement. Both children required costly and time-consuming medical and psychological services. Timothy behaved aggressively. The court ordered the children be placed in a foster home.

In February 2007, the children began treatment with psychotropic medication for hyperactivity, poor attention span, and poor impulse control. Laura had difficulty walking, a hip disorder, and a heart murmur. Timothy was diagnosed with ADHD, which caused him to be restless, disruptive, inattentive, unfocused, and impulsive. Both children were red-dye sensitive. Both children were socially and academically delayed. In their new foster home placement, Laura was disruptive at school and Timothy was incontinent during the day.

Attention Deficit Hyperactive Disorder.

In April 2007, the children were moved to a second foster-home placement. Timothy had been stealing, lying, bullying, biting, refusing to follow directions at home or at school, and wandering around the house at night.

The second set of foster parents reported that Timothy, then age five, continued to be frustrated, and distracted while exhibiting poor impulse control and fidgeting with objects constantly. He was needy, impatient, and he often interrupted. He was described as having intermittent explosive disorder, marked by tantrums and continuing volatility. He would overeat until he was sick. He displayed no insight about his behavior. He was performing below grade level for kindergarten.

Meanwhile, Laura had engaged in inappropriate sexual behavior with her four-year-old foster sister and others. Laura was also diagnosed with mild cerebral palsy and ADHD. Laura was developmentally delayed, physically, socially, and academically. The foster family requested the children be removed and they were placed in a third foster home in May 2007.

In August 2007, the social worker reported the twins would be difficult to place for adoption as siblings because Timothy was aggressive, Laura exhibited sexual acting out, and both of them had significant medical and behavioral problems. No adoptive families had been recruited yet.

In September 2007, the foster parents asked for Timothy to be removed because of multiple suspensions, threats, fighting, refusal to follow rules, and sexual conduct toward Laura. The court terminated reunification services and set the matter for a hearing under section 366.36. Timothy was placed with a different foster family than Laura, his sixth placement since July 2006. In December 2007, he was prescribed different medication.

In January 2008, DCS reported that Laura and Timothy both seemed to be improving. Timothy’s foster parents reported there was a mutual attachment and they were considering a permanent placement. Laura’s foster family was also committed to providing her with long-term care.

The twins were still considered to be hard-to-place children and no adoptive families had been identified. Timothy’s negative behavior had continued and he was acting out sexually toward Laura, trying to touch her genitals while she was in the bathroom or when they were riding in the car. Laura was adversely affected by her brother’s conduct. She hid in a closet and touched a two-year-old child’s genitals. She also grabbed the crotch of an adult male.

In spite of the children’s ongoing problems, the social worker believed they could improve with stable placements and consistent treatment. She recommended the court terminate parental rights and a permanent adoptive home be located. In March, Laura’s foster parents agreed to undertake adoption. Timothy’s foster parents reported significant improvement and agreed to consider adoption.

At the section 366.26 hearing in May 2008, father was still incarcerated but present at the hearing. The social worker testified that Timothy had been in his placement for six months since October 2007. His foster parents were committed to providing long-term care and were still considering adoption. She believed Timothy was adoptable because he was young, had become attached to his current caretakers, and was showing improvement.

The court acknowledged that the children had demonstrated many problems and challenges initially. The court also recognized Laura’s ongoing improvement in the year since May 2007 and Timothy’s ongoing improvement for six months. The court found by clear and convincing evidence that it was likely both children would be adopted and it ordered parental rights terminated.

3. Discussion

Father contends the evidence was insufficient to support a finding of adoptability by clear and convincing evidence: “‘Clear and convincing’ evidence requires a finding of high probability. The evidence must be so clear as to leave no substantial doubt. (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205.)” (In re Asia L. (2003) 107 Cal.App.4th 498, 510.) Giving the proper deference to the dependency court’s finding of adoptability, we must uphold it. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.)

In deciding adoptability, the court focuses “‘on the child, and whether the child’s 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 minor’s 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 parent’s 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.)” (In re Asia L., supra, 107 Cal.App.4th at p. 510.)

In the present case, both Timothy and Laura were young enough in May 2008 that it appears their emotional problems were already ameliorating in placements which had been of reasonable duration. In his appellate brief, father focuses almost entirely on Timothy’s behavior before his last foster placement in October 2007. Father does not give much attention to Timothy’s successes in the subsequent six months. At the time of the section 366.26 hearing, the children had been in the dependency system for 21 months. Finally, in the last six months or year, the children were adjusting and improving. Laura’s foster parents wanted to adopt her while Timothy’s foster parents were considering adoption. Even if these foster families decline ultimately to adopt Laura or Timothy, there is clear and convincing evidence that some family will be willing to adopt each of them within a reasonable time.

Father relies on the cases of In re Tamneisha S. (1997) 58 Cal.App.4th 798and In re Amelia S. (1991) 229 Cal.App.3d 1060, which are distinguishable. In Tamneisha S., the appellate court upheld the dependency court’s refusal to make a finding of non-adoptability. Here, we are also affirming the dependency court’s ruling on adoptability.

Amelia S. concerned nine children in five different foster placements. Two sets of foster parents were considering adopting five of the children. The other three foster families were not considering adoption. The three oldest children had mixed feelings about adoption. All of the children “had various developmental, emotional and physical problems, some of a serious nature, . . .” (In re Amelia S., supra, 229 Cal.App.3d at 1063.) The Amelia S. court said, “. . . the permanency hearing report indicated a few foster parents were considering adoption. This is a far cry, however, from the clear and convincing evidence required to establish the likelihood of adoption.” (Id. at p. 1065.)

Here, however, the twins were in separate placements and it had been decided they would be separately placed permanently. The various problems they have displayed were substantially resolved. After six months, Timothy’s foster parents were pleased with his progress and seemed to be moving toward a willingness to adopt. The social worker concluded he would be adoptable. His circumstances were not comparable to those in Amelia S.

Regarding Laura, father argues the inadequate adoption assessment reports meant the court could not make an adoptability finding. (In re Valerie W. (2008) 162 Cal.App.4th 1, 15.) The first adoptive assessment reports stated that no adoptive parents had been identified but the foster parents were considering permanent placement and long-term care. The social worker was optimistic that, as the children’s behavior improved, adoptive parents could be located. In addendum reports in April 2008, the foster parents and Laura both expressed their desire for adoption. The foster parents received information about the Adoption Assistance Program and the foster parents stated they understood the legal and financial responsibilities.

Father did not object to the sufficiency of the reports in the proceedings below. Therefore, he forfeited the issue on appeal. (In re Brian P., supra, 99 Cal.App.4th at pp. 622-623.) In any event, the omission of any discussion of guardianship with Laura’s prospective adoptive parents was irrelevant because that was not an issue. (§ 366.21, subd. (i)(1)(D).) The further omission of any recent criminal or child abuse investigation of the prospective adoptive parents was harmless given that a licensed foster home is already subject to investigation. (Health & Saf. Code, § 1500 et seq.) Furthermore, in the ensuing process, prospective families must be additionally evaluated, curing any potential error. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 956, citing In re Diana G. (1992) 10 Cal.App.4th 1468, 1481-1482.)

Finally, we reject father’s concern that Laura or Timothy may become legal orphans without parents, natural or adoptive. Section 366.26, subdivision (i), remedies that danger by allowing the order terminating parental rights to be set aside when no adoptive parents can be found after a specified period of time.

4. Disposition

We affirm the judgment terminating parental rights and finding by clear and convincing evidence that Timothy and Laura are adoptable.

We concur: Hollenhorst, Acting P. J., Richli, J.


Summaries of

In re Laura C.

California Court of Appeals, Fourth District, Second Division
Sep 16, 2008
No. E045744 (Cal. Ct. App. Sep. 16, 2008)
Case details for

In re Laura C.

Case Details

Full title:In re LAURA C. et al., Persons Coming Under the Juvenile Court Law. SAN…

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

Date published: Sep 16, 2008

Citations

No. E045744 (Cal. Ct. App. Sep. 16, 2008)