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In re L.K.

California Court of Appeals, Sixth District
Mar 13, 2008
No. H031872 (Cal. Ct. App. Mar. 13, 2008)

Opinion


In re L.K., a Person Coming Under the Juvenile Court Law. SANTA CRUZ COUNTY HUMAN RESOURCES AGENCY, Plaintiff and Respondent, v. ANTOINETTE M., Defendant and Appellant. H031872 California Court of Appeal, Sixth District March 13, 2008

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

Santa Cruz County Super. Ct. No. DP000931

Bamattre-Manoukian, Acting P.J.

Antoinette M., mother of L., the child at issue here, appeals from a juvenile court order terminating her parental rights. Mother contends that termination of her parental rights without a finding by clear and convincing evidence that the child was adoptable was a violation of her due process rights. She argues that there is insufficient evidence that L. was likely to be adopted within a reasonable time. As we find that the record amply supports the juvenile court’s findings and order, we will affirm the order terminating parental rights.

BACKGROUND

Then two-year-old L. and his six-year-old half-brother W. were taken into protective custody by the Santa Cruz County Sheriff’s Office on March 22, 2004, after mother was arrested for child endangerment. Mother had left the children at home alone and unsupervised for several hours, L. was in need of medical care due to a tick bite and a high fever, and the home was extremely unkempt. Mother suffers from a seizure disorder and a bipolar disorder, but was not taking medication for her condition and was using marijuana and alcohol. In addition, mother frequently left L. in the care of her husband J.K., who is the child’s father and who is homeless and mother had 23 prior referrals for suspected abuse and neglect of the children, three of which were substantiated. On March 24, 2004, the Santa Cruz County Human Resources Agency (the Agency) filed a petition as to L. under Welfare and Institutions Code section 300, subdivision (b) [failure to protect]. The juvenile court ordered L. detained after a hearing on March 26, 2004, and ordered supervised visitation a minimum of once each week. Both children were placed with their maternal grandmother.

Mother and the father were married but separated and no divorce proceedings were pending.

All further statutory references are to the Welfare and Institutions Code.

The jurisdictional/dispositional hearing was held on April 22, 2004. Both parents submitted the matter on the social worker’s report. The report recommended that mother be offered reunification services, which were to include counseling, psychological and medication evaluations, parenting education, and out-patient substance abuse services. The court found that L. is a person described by section 300, subdivision (b), adopted the recommendations in the social worker’s report, and set the six-month review hearing for October 22, 2004.

The court appointed a special advocate for L. on August 12, 2004.

On August 20, 2004, the Agency filed a section 388 petition requesting that the court order a second psychological evaluation for mother as the first psychological evaluation indicated that mother would not benefit from reunification services. The court granted the petition and appointed a second evaluator.

The social worker’s report for the six-month review hearing recommended that L. be continued as a dependent child of the court with continued out-of-home placement with his grandmother and that services continue to mother, but that services be terminated as to the father. Mother was engaged in her service plan but her recent pregnancy limited her ability to regularly attend all of her programs. L. had been assessed by Children’s Mental Health and would be seeing a therapist at the Parent Center. L. was also awaiting an assessment by Head Start due to some speech delays.

A contested six-month review hearing was held on November 4, 2004. Mother submitted the matter on the social worker’s report but the father contested the termination of services to him. The court adopted the recommendations in the social worker’s report, terminated services for the father, and set the 12-month review hearing for April 15, 2005.

The social worker’s report for the 12-month review hearing recommended that L. continue as a dependant child of the court in out-of-home placement with his grandmother and that services continue to mother. The report stated that the second psychological evaluation found that mother could benefit from services and that mother was actively engaging in her service plan. Mother was also receiving family maintenance services for her new baby. L. was being seen by a therapist at the Parent Center and was doing well in therapy. Although he had exhibited sexualized behavior at his daycare, and reported that he learned it from W., W. had reported no sexual abuse. L.’s special advocate reported serious concerns about mother’s long-term ability to keep her children safe, but she agreed with the social worker’s recommendations. At the 12-month review hearing on April 15, 2005, the court adopted the recommendations contained in the social worker’s report and set the 18-month review hearing for September 23, 2005.

On July 8, 2005, the Agency filed a section 388 petition requesting that the court return L. to mother’s care with family maintenance services. The court granted the petition, continued the child as a dependent child of the court, and set the matter for a review hearing on August 26, 2005.

The social worker’s report for the August 26, 2005 review hearing recommended continuing L. as a dependent child of the court in mother’s care with an additional six months of family maintenance services. Mother and her youngest child’s father, who was residing with mother and all three children, were engaging in counseling services and parenting education and support programs. Mother was also continuing her mental health treatment program under a psychiatrist and neurologist. L. was participating in therapy to address his behavioral and emotional needs, and was doing well in therapy. He was also doing well in the Head Start program. At the August 26, 2005 review hearing, mother submitted the matter on the social worker’s report. The court adopted the recommendations contained in the report and set the matter for a review hearing on February 24, 2006.

The social worker’s report for the February 24, 2006 review hearing recommended continuing L. as a dependent child of the court in mother’s care with an additional six months of family maintenance services. L. appeared to be meeting his developmental milestones. He was in the Head Start program but he was unable to benefit fully from it due to frequent absences and tardiness. He continued in weekly therapy and his therapist expressed concerns about his rage and sexualized behaviors.

L.’s special advocate filed a report stating that she found L. to be “a charming, hugging, adorable, angry little boy.” She stated that L. acts inappropriately friendly with strangers, has trouble controlling his impulses and relating to other children, exhibits sexualized behaviors, and tries to hurt animals, all of which she thought were symptoms of a severe attachment disorder. She recommended that services be terminated, that L. be removed from the home, and that he be provided with intensive, specialized therapy for his attachment disorder.

At the hearing on February 24, 2006, L.’s counsel submitted a section 388 petition requesting that family maintenance be terminated, that L. be removed from mother’s home, and that a section 366.26 hearing be set. Counsel for the Agency advised the court that the Agency was changing its recommendation and that it agreed with L.’s counsel that L. should be removed from mother’s care. The court continued the matter at mother’s request. At the continued hearing on February 27, 2006, the Agency filed a response to the section 388 petition and recommended that L. be removed from mother’s custody pursuant to section 387, that services be terminated, and that a section 366.26 hearing be set. After the social worker and L.’s special advocate testified, the court ordered L. detained and set the matter for a contested section 388 hearing to determine if services should be terminated and a section 366.26 hearing set. L. was placed in the home of his maternal aunt.

The social worker’s report for the contested section 388 hearing stated that L. continued to have challenging behavior at preschool, including conflicts with other students and teachers. He was wetting the bed nightly and soiling himself occasionally, including during visits with mother. He was also having nightmares and difficulty sleeping. The contested hearing was held over four days between April 10 and 26, 2006. Mother submitted a written waiver of reunification services at the conclusion of the hearing. The court sustained the section 388 petition and ordered the Agency to conduct an assessment of the maternal aunt for possible guardianship of L.

On May 25, 2006, the Agency filed a section 387 petition seeking placement of L. in a foster home. He had run away from his aunt’s home and had reported physical abuse while in the home, and the aunt had admitted that she had used inappropriate discipline. Following a hearing on May 26, 2006, the court ordered that the minor remain in foster care and set the matter for a contested hearing on July 6, 2006.

L.’s new special advocate filed a report stating that L. was responding very well in foster care. L. was respectful and obedient with his foster mother and played well with the other children in the household. However, the foster mother did not want to be L.’s long-term caregiver, so the special advocate recommended that a long-term placement be found for L. At the July 6, 2006 hearing, the court found the allegations in the section 387 petition to be true and set a section 366.26 hearing for October 27, 2006.

The social worker’s report for the section 366.26 hearing recommended a permanent plan for L. of a planned permanent living arrangement, with the hope that the permanent plan would later change to adoption. L. was moved to an intensive treatment foster home on September 30, 2006, which could become an adoptive placement. L. was attending kindergarten, but was still using aggressive and sexualized behaviors and language with children and rough behavior with pets. He disclosed physical and sexual abuse by W., and was seeing a therapist who was treating him for Posttraumatic Stress Disorder. The social worker believed that L. was adoptable, and hoped that with support his current placement would be successful.

L.’s special advocate wrote a report stating that L. was happy in his current placement and was making excellent progress toward integrating into the family and into school. Because the foster family was very interested in adopting L., the special advocate recommended that all efforts be made toward making the placement successful and permanent.

On November 8, 2006, both parents submitted the matter on the social worker’s report and the court adopted the recommendations contained in the report. The court found that termination of parental rights would be detrimental to L. and that a permanent planned living arrangement would be the appropriate permanent plan.

On December 1, 2006, L.’s counsel filed a petition under section 388 requesting that all visitation with mother be suspended. The petition stated that L. had been placed with a prospective adoptive family on November 21, 2006, and that his therapist strongly believed that L. needed time to settle into the placement without family visits. The court set the matter for a hearing on December 15, 2006. At that hearing, mother opposed the petition and requested that the matter be set for a contested hearing. The court temporarily suspended visitation and set the matter for a contested hearing on February 1, 2007. The matter was later continued to February 27, 2007.

On February 8, 2007, the Agency filed a section 388 petition asking the court to set a new section 366.26 hearing so that a new permanent plan could be established for L. L.’s current foster family had expressed an interest in adopting him and the Agency believed that a plan of adoption would provide L. with more permanency and stability. The court set the matter for a hearing on February 16, 2007.

A letter to the social worker from L.’s foster mother was attached to the social worker’s addendum report filed February 16, 2007. The letter outlined L.’s aggressive and destructive behavior, but stated that L. was making progress. It also stated that L. is attached to the family; that he is responding to the love, affection, redirection, structure and consistency that the family provides; and that he refers to the foster parents as Mom and Dad and to the other boys in the home as his brothers. The letter concluded: “We are willing to continue to work with L[.] as long as he continues to make progress in our home and school and continues to be a healthy fit for the whole family.” “If we can get him stable in our home our desire is to adopt him.”

The contested hearing was continued and heard on February 27, 2007. After hearing testimony from several witnesses, including mother, two social workers, and L.’s therapist, the court granted the request to suspend visitation between mother and L. and set a 366.26 hearing for June 15, 2007.

Mother filed a notice of intent to file a writ petition challenging the trial court’s order, but she did not file a petition in this court.

On May 8, 2007, the court granted the petition of L.’s pediatrician to authorize the administration of Risperdal to L. due to his episodes of violence at home. The petition stated that L. had tripped the foster mother, choked a brother, and expressed violent ideas, and that he was in therapy for adjustment disorder, intermittent explosive disorder, oppositional defiant disorder/conduct disorder, and posttraumatic stress disorder.

The social worker’s report for the section 366.26 hearing recommended that parental rights be terminated and that a permanent plan of adoption be established for L. L. had been in his prospective adoptive home for about six months and was slowly making progress in his ability to self-correct and internalize his behaviors. He was also beginning to express a feeling of belonging in the family and a feeling of comfort in the stability the family provides him. L. had also told the social worker that he wants to remain in his current home. The adoptive parents had reported that L. has been more stable both at school and at home since starting on Risperdal. The adoptive parents are highly skilled specialized foster parents who are able to meet L.’s needs, and they understand the responsibilities of adoption as they have previously adopted two children and were adopting a third.

L.’s special advocate wrote a report stating that L. has continued to exhibit extreme behavior in the home, but less frequently. L. is happy in this home, is on track academically, is developing tools to manage his emotions, and is becoming more thoughtful and aware of the results of his actions. In addition, L. has asked to be adopted. At the hearing on June 15, 2007, at the request of L.’s pediatrician and with the agreement of all parties, the court ordered a psychological evaluation and a medication evaluation for L., and continued the matter to July 9, 2007.

At the contested section 366.26 hearing on July 9, 2007, the Agency submitted the matter on the social worker’s report. Mother testified that it would be to L.’s benefit to continue his relationship with her and his siblings, and that she did not want her parental rights terminated. The father testified that every time he visited L., he referred to him as daddy. L. would be distant at first but then would say that he did not want the father to leave. The Agency argued that termination of parental rights and adoption was the best permanent plan for L., and that “the Court would not be able to find that L[.] is not adoptable because there is a family ready, willing and able” to adopt him. Counsel for Mother argued in part that “[i]t is clear that this child has very serious emotional and behavioral problems” and, therefore, “the Court cannot make a finding by clear and convincing evidence that this child [is] likely to be adoptable [sic]. The Court cannot make this finding even having in mind that there is a prospective adoptive family in place. This placement is not yet stable.” “[A]nd without such a finding . . . the Court cannot order termination of parental rights.” Mother asked the court to order a permanent plan of guardianship or long term foster care. Counsel for the father also contested L.’s adoptability.

The ordered psychological evaluation and the medication evaluation had not been completed at the time of the hearing.

Counsel for L. argued: “For both parents to argue that L[.] is not adoptable puts [him] in a Catch 22. On the one hand his behaviors are so severe because of what he has suffered in his past that he’s not adoptable, and yet on the other hand adoption is the only thing that could save him and get him to be a healthier child and not have the behavioral issues. [¶] . . . [W]hen the Court weighs the two, especially considering we have [a] prospective adoptive family for this child with whom he has been residing for more than six months – more than eight months, that shows that he is capable of settling down as he progresses and gets better and better, that his chances for successful adoption increase dramatically, as well.”

The court stated that what it “has to do today is make a decision as to what’s best for L[.]” “[W]hat you’re witnessing in this case is a miracle, because with some of the problems that L[.] has, he still has been found to be, and will be found by this Court to be an adoptable child. That there are people who want to support and care for him and provide him with permanency.” “The Court does find with clear and convincing evidence that L[.] is an adoptable child.” “So the finding the Court needs to make is that L[.] is an adoptable child, that it is not detrimental to sever parental rights at this time, and the Court would so order. [¶] And the Court would indicate that it does find that the best permanent plan for L[.] is adoption, and I would make that order today. I do not find it beneficial to delay that as argued by counsel. I certainly understand reasons therefor. L[.] has been waiting a long time to proceed to this point.”

Mother filed a timely notice of appeal from the trial court’s order terminating her parental rights.

DISCUSSION

In this court, mother contends that there was insufficient evidence to support the juvenile court’s finding that L. was likely to be adopted in a reasonable time and, therefore, the termination of her parental rights was a violation of her due process rights. She argues that L.’s adoption was contingent on one family adopting him and yet that family did not have an approved home study. She also argues that critical information regarding L.’s future needs was unknown and the prospective adoptive parents were only conditionally committed to L.’s adoption.

“The purpose of the selection and implementation hearing is to ‘provide stable, permanent homes for [dependent children].’ (§ 366.26, subd. (b).) A juvenile court at a section 366.26 hearing must select one of three plans for the child: adoption, guardianship or long-term foster care. (§ 366.26, subd. (b)(1)-([5]); In re Taya C. (1991) 2 Cal.App.4th 1, 7.)” (In re Jose V. (1996) 50 Cal.App.4th 1792, 1797 (Jose V.).) “Adoption is the preferred placement because it offers the prospect of a secure permanent home.” (In re Jamie R. (2001) 90 Cal.App.4th 766, 774; accord, In re Celine R. (2003) 31 Cal.4th 45, 53.)

Notwithstanding the preference for adoption, the juvenile court may not terminate parental rights and free the child for adoption unless it finds by clear and convincing evidence that the child is likely to be adopted within a reasonable time. (§ 366.26, subd. (c)(1); Jose V., supra, 50 Cal.App.4th at pp. 1797-1798.) “ ‘Clear and convincing’ evidence requires a finding of high probability. The evidence must be so clear as to leave no substantial doubt.” (In re Asia L. (2003) 107 Cal.App.4th 498, 510.)

An appellate court must uphold the juvenile court’s findings if substantial evidence supports them. (See In re Erik P. (2002) 104 Cal.App.4th 395, 400; In re Brittany C. (1999) 76 Cal.App.4th 847, 854; In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) “We give the court’s finding of adoptability the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of affirming.” (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1562.) “We have no power to judge the effect or value of the evidence, to weigh the evidence, to consider the credibility of witnesses or to resolve conflicts in the evidence or the reasonable inferences which may be drawn from that evidence. [Citations.] Under the substantial evidence rule, we must accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact. [Citation.]” (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53; In re Diamond H. (2000) 82 Cal.App.4th 1127, 1135, disapproved on another point in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.) The appellant has the burden of showing that the challenged finding or order is not supported by substantial evidence. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947; In re Diamond H., supra, 82 Cal.App.4th at p. 1135.)

“The question of adoptability posed at a section 366.26 hearing usually focuses on whether the child’s age, physical condition, and emotional state make it difficult to find a person willing to adopt that child. [Citation.] If the child is considered generally adoptable, we do not examine the suitability of the prospective adoptive home. [Citation.] However, where the child is deemed adoptable based solely on the fact that a particular family is willing to adopt him or her, the trial court must determine whether there is a legal impediment to adoption. [Citation.]” (In re Carl R. (2005) 128 Cal.App.4th 1051, 1061 (Carl R.).)

Here, mother contends that L. is not generally adoptable due to his psychological condition and that he is not specifically adoptable because the prospective adoptive parents did not have an approved home study. Although conceding that no court has expressly stated that the absence of an approved home study is a legal impediment to adoption, mother argues that “interpretive law clarifies that is the case.” The Agency argues that the cases cited by mother do not hold that home studies must occur where, as here, there is an identified adoptive home.

A finding of adoptability does not require “ ‘a family ready to adopt the child,’ ” or that there be adoptive parents “ ‘waiting in the wings.’ ” (In re Jennilee T. (1992) 3 Cal.App.4th 212, 223, fn. 11; see also In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) “ ‘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.’ [Citation.]” (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154; In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.) Furthermore, “there is no requirement that an adoptive home study be completed before a court can terminate parental rights. The question before the juvenile court was whether the child was likely to be adopted within a reasonable time, not whether any particular adoptive parents were suitable.” (In re Marina S. (2005) 132 Cal.App.4th 158, 166.) The question of a family’s suitability to adopt is an issue reserved for the subsequent adoption proceeding. (In re Scott M. (1993) 13 Cal.App.4th 839, 844; In re Marina S., supra, 132 Cal.App.4th at p. 166.)

In this case, L. had been placed for many months with foster parents who had grown attached to him and wished to adopt him. The fact that they were licensed foster parents could satisfy the requirement for a preliminary adoption assessment (see In re Diana G. (1992) 10 Cal.App.4th 1468, 1481), and there was evidence that the family met L.’s special needs. Mother errs in equating L., a special needs child, with a child with multiple disabilities who would need intensive care for life. (See Carl R., supra, 128 Cal.App.4th at pp. 1058, 1062.) L. was participating in therapy to address his behavioral and emotional needs, and was doing well in therapy. His special advocate found that L. was happy in his placement, that he was integrating well into the family, and that he expressed wanting to be adopted.

In re Ramone R. (2005) 132 Cal.App.4th 1339, cited by mother, does not support her contention that the lack of a home study is a legal impediment to adoption. In that case, the appellate court reversed the juvenile court’s finding that the child would probably be adopted. The appellate court found that nothing in the social worker’s reports or in the testimony of the witnesses at the section 366.26 hearing established a probability of adoption. Nor was there anything in the record to indicate that adoption by any caretaker would be a probability within 180 days. Although the agency had recently begun exploring the possibility of placing the child with a relative, the assessment of the relative was incomplete and the child had such behavioral difficulties his foster mother required respite care. (132 Cal.App.4th at pp. 1351-1352.) In the case before us, however, the social worker’s reports established a probability of adoption by his current foster family, and the record shows that the foster family had already adopted two children, was adopting a third, and was ready, willing and able to adopt L.

In re Salvador M. (2005) 133 Cal.App.4th 1415, also cited by mother, does not support her contention either. In that case, the juvenile court found that adoption would not interfere with the sibling bond between the child and his brother because the maternal grandmother wanted to adopt the child and the child would therefore continue to live with his brother in the grandmother’s home. At the time of the section 366.26 hearing, however, the grandmother’s home study was not complete. (133 Cal.App.4th at p. 1419.) The appellate court augmented the record on appeal to include a report that the grandmother’s home study was completed and approved while the mother’s appeal was pending. (Id. at p. 1420.) As the approval of the grandmother’s home study removed any uncertainly that the grandmother would adopt the child, this mooted one of the mother’s claims on appeal that the juvenile court erred by not applying the sibling bond exception to adoption. (Id. at p. 1422.) While affirming the juvenile court’s findings and order, the appellate court noted that the better procedure for the juvenile court to have followed would have been to continue the hearing until the grandmother’s home study had been completed. (Ibid.) In the case before us, the court did not need to continue the section 366.26 hearing until a home study of the prospective adoptive parents had been completed as they were already licensed foster parents and adoptive parents. There is substantial evidence in the record to support the juvenile court’s implicit finding in this case that there was no legal impediment to L.’s adoption.

Mother further contends that there was insufficient evidence that L. was likely to be adopted in a reasonable period of time because critical information regarding L.’s future needs was unknown and the foster parents were only conditionally committed to L.’s adoption. Mother’s contention that there was insufficient evidence that the prospective adoptive parents were capable of meeting L.’s future needs is based on the fact that the court-ordered psychological evaluation had not taken place by the time of the section 366.26 hearing. Mother’s contention that the foster parents were only conditionally committed to L.’s adoption is based on the statements the foster mother made in her letter to the social worker that was attached to the report filed February 16, 2007, stating that the foster parents’ “desire” was to adopt L. “if we can get him stable in our home.” (Italics added.)

The record before us indicates that the psychological evaluation and medication evaluation were ordered for L. at the request of his pediatrician and not at the request of the prospective adoptive parents. In addition, the letter cited by mother from the foster mother to the social worker was written in January 2007, six months before the section 366.26 hearing. At the section 366.26 hearing, the Agency informed the court that the foster family was ready, willing, and able to adopt L. In addition, both the Agency and L.’s counsel argued that termination of parental rights and adoption was the best permanent plan for L, and his special advocate reported that he wanted to be adopted. The record before us amply supports the juvenile court’s finding that L. is likely to be adopted within a reasonable time. As substantial evidence supports the court’s order terminating parental rights, mother has not shown that she was denied due process.

DISPOSITION

The order of July 9, 2007, terminating parental rights is affirmed.

WE CONCUR: MIHARA, J., DUFFY, J.


Summaries of

In re L.K.

California Court of Appeals, Sixth District
Mar 13, 2008
No. H031872 (Cal. Ct. App. Mar. 13, 2008)
Case details for

In re L.K.

Case Details

Full title:SANTA CRUZ COUNTY HUMAN RESOURCES AGENCY, Plaintiff and Respondent, v…

Court:California Court of Appeals, Sixth District

Date published: Mar 13, 2008

Citations

No. H031872 (Cal. Ct. App. Mar. 13, 2008)