Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEALS from orders of the Superior Court of Los Angeles County, Super. Ct. No. CK63822 S. Patricia Spears, Judge.
John C. Cahill, under appointment by the Court of Appeal, for Defendant and Appellant R. D.
Cassandra M. Williams for Appellant G. R.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, Frank J. Da Vanzo, Principal Deputy County Counsel, for Plaintiff and Respondent.
EPSTEIN, P. J.
Father R. D. appeals from an order terminating his parental rights as to his sons R. D. and P. F., claiming the court erred in finding that the boys were adoptable. The boys’ maternal grandmother, G. R., appeals from the order denying her petition for modification. We find no error and affirm the orders. Grandmother also purports to appeal from a later order denying her petition for disclosure of the record. We dismiss grandmother’s appeal from that order for lack of jurisdiction.
FACTUAL AND PROCEDURAL SUMMARY
In June 2006, when R. D. was three years old and P. F. was two years old, they were removed from their parents’ custody based on allegations of domestic violence and drug abuse. The children were initially released to their maternal grandmother, who had been their primary caretaker. After the Department of Children and Family Services (DCFS) saw that the maternal grandmother was living in a two-bedroom trailer with four minor children of her own, and learned that the maternal grandfather had been charged with driving under the influence in 2003, the children were placed in foster care. The court adjudicated the children dependents pursuant to Welfare and Institutions Code section 300 in July 2006, and ordered family reunification services for the parents.
All further statutory references are to the Welfare and Institutions Code.
The children were moved to the home of their maternal great aunt, but were detained from her home in January 2007. According to the section 387 petition, the great aunt was at the grandmother’s home with the children for dinner on New Year’s Eve; the children’s mother also was present. While grandmother was out on an errand, the great aunt went into the bathroom. When she came out, the children and grandmother’s car were gone. The great aunt called grandmother, not the police. Mother had taken the children to a motel where she used crack cocaine. She then suffered a drug-induced seizure, and was hospitalized. She was two and one-half months pregnant at the time.
On March 26, 2007, the section 387 petition was sustained, and the children were placed in foster care. Grandmother’s motion for de facto parent status was denied, and she was given monitored visitation. The children were referred for concurrent planning, adoption planning, and a home study. In April, the court terminated family reunification services, and set July 26, 2007 for a section 366.26 permanency planning hearing for the children.
In July 2007, mother gave birth to R. R. D. DCFS filed a section 300 petition on R. R. D.’s behalf alleging parental drug abuse and domestic violence. She was detained and placed in foster care. R. R. D. is not a subject of this appeal.
Grandmother filed a section 388 petition for modification on July 5, 2007, seeking placement of the children in her home, or in the alternative, increased and unmonitored day visits to be expanded to overnight visits. The court denied the petition on July 9 because it was not properly served on the parties.
In the report for the July 26 permanency planning hearing, DCFS reported that both boys had been assessed and found to have substantial language delays. They were receiving special education services to address these problems. It was also noted that the children’s “social and emotional functioning have been impaired and further delayed by the mother’s pre-natal substance abuse, parental drug exposure, neglect and allowing the children to witness domestic violence.” The June 1, 2007 assessment report by the VIP Community Based Assessment and Treatment Center indicated that the children’s “symptoms and negative behaviors appear to increase after visitation with their mother and grandmother. The children appear to have an increase in posttraumatic stress symptoms when they visit with their mother and grandmother, which is not healthy for the children’s mental health. It is essential that the children continue to participate in individual and dyadic therapy, to assure that [they] secure and maintain emotional stability until permanent placement is determined.”
At the July 26 hearing, counsel for the children sought an order suspending visitation for the mother and grandmother. After hearing argument, the court suspended visits for mother and grandmother for 60 days, with a progress report required on whether the suspension of visits produced positive results for the children. The court explained that “ when I have doctors saying that it’s really unhealthy for these kids to have these kinds of reactions when these ladies visit—I’m a judge; I’m not a doctor. I’m going to follow their advice. I believe this is very substantial evidence.”
The court indicated that in 60 days it would look at reintroducing grandmother’s visits to see how the children reacted. “If they start relapsing and bed wetting and all those other things when they start seeing grandma, then there will be detriment for both of them, okay? But I need to take it one step at a time. I need to give the professionals a chance to work with these children, and I need to give them the best possible shot at helping these children become normal kids because they’re nowhere near it.” The court also ordered an administrative review with regard to the adequacy of efforts by the adoptions worker to find an adoptive family for the children.
On September 5, 2007, grandmother filed a new section 388 petition seeking visitation with the children, a bonding study, and placement of the children in her home. The court ordered a hearing on the petition as to visitation only, and ordered that the children’s therapist observe and report on a visit between grandmother and the children for the November 8 hearing. The therapist asked to observe a second visit before making a recommendation, and the court continued the hearing for that purpose. We address the handling of the section 388 motion in further detail in the discussion portion of this opinion.
During the preceding months, two potential adoption matches for the children did not proceed. A third match was found for them in December. The boys were introduced to the family in early January, and after several successful visits, they were placed in the pre-adoptive home on January 28, 2008.
The section 388 hearing and the section 366.26 hearing took place on February 4, 2008. The court denied grandmother’s motion, found the children were adoptable, and terminated parental rights. Father and grandmother filed separate appeals.
DISCUSSION
I
Father claims there was no substantial evidence to support the finding that it was likely the children would be adopted as required by section 366.26, subdivision (c)(1) before the termination of parental rights.
He argues that the adoption assessment was inadequate, a claim not raised in the juvenile court. Failure to object to the adequacy of the adoption assessment report forfeits the claim on appeal. (In re Urayna L. (1999) 75 Cal.App.4th 883, 886.) “[A]ny other rule would permit a party to trifle with the courts by standing silently by, thus permitting the proceedings to reach a conclusion in which the party could acquiesce if favorable and avoid if unfavorable.” (Ibid.)
We turn to the evidence supporting the court’s finding of adoptability. “In order for the court to select and implement adoption as the permanent plan, it must find, by clear and convincing evidence, the minor will likely be adopted if parental rights are terminated.” (In re Tabatha B. (1996) 45 Cal.App.4th 1159, 1164; § 366.26, subd. (c)(1).) “All that is required is clear and convincing evidence of the likelihood that adoption will be realized within a reasonable time.” (In re Zeth S. (2003) 31 Cal.4th 396, 406.) “Usually, 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.’ (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) However, ‘in some cases a minor who ordinarily might be considered unadoptable due to age, poor physical health, physical disability, or emotional instability is nonetheless likely to be adopted because a prospective adoptive family has been identified as willing to adopt the child.’ (Id. at p. 1650.)” (In re Brandon T. (2008) 164 Cal.App.4th 1400, 1408.) We review the court’s finding of adoptability under the substantial evidence standard. (In re B. D. (2008) 159 Cal.App.4th 1218, 1232.)
As father notes, DCFS had found two earlier adoptive matches for the children, but both potential adoptive families had decided not to move forward with adoption. The first family did not proceed because they were interested in a sibling set of three children, and wanted children with a very low risk of removal. Apparently the adoption worker had indicated to the prospective family that it was likely the children would be returned to their parents. The second prospective adoptive family decided not to proceed because they were concerned about possible fetal alcohol syndrome. But the February 4, 2008 permanency planning assessment reported that DCFS had found a new match for the children. In mid-December 2007, the children’s social worker, adoption social worker and applicant worker participated in a pre-placement telephone conference addressing the children’s history and needs, and the ability of the prospective family to meet those needs. In a presentation conference to the prospective parents on January 7, 2008, these social workers “provided all the available information regarding the children in order to provide full disclosure to the applicants. The prospective adoptive applicants were enthusiastic about meeting the children.”
The applicants had their first visit with the children three days later. The applicants appeared affectionate and caring toward the children, and the children appeared “friendly, responsive and playful towards the applicants.” Five more visits followed between January 15 and January 24. According to the assessment, “The children have developed signs of positive attachment toward the applicants. For instance, the children remembered the applicants’ names, they appeared very happy and excited to see the applicants and they cry at the end of the visits. In addition, [R. D.] has a small photo album with their pictures and the applicants’ pictures. He carries the album with him and enjoys showing the pictures to other people. The applicants also maintain communication with the children over the phone. [R. D.] has stated that he wants to go live at the applicant’s home. The children also had a therapy session with the applicants . . . .” The children had an overnight visit on January 25, and placement took place on January 28, 2008. The prospective adoptive mother reported to the social worker that “everything is going well and she is in the process of enrolling the children in school.”
The placement with the prospective adoptive parents was a “Fost-Adopt” placement, which meant that the applicants had been approved as adoptive parents. (See Los Angeles County Department of Children and Family Services Adoption Handbook, p. 5; judicial notice granted Aug. 8, 2008.) The adoption assessment indicated that the prospective adoptive parents understood the “children’s personal characteristics and current functioning level.” They were committed to providing the boys with “a safe, stable and loving environment.” They also indicated their willingness “to advocate for the children in order to obtain all the services they need.”
As to the special needs of the children, four-year-old R. D. had a heart murmur, but his doctor believed it “‘is likely innocent and will more than likely disappear with time.’” He was receiving speech therapy in accordance with his Individualized Education Program (IEP). The IEP recommended that R. D. be placed in the “Severe Disorders of Language Preschool Program” which involves “a smaller sized pre-school classroom with a highly structured environment, where speech and language intervention is incorporated in daily classroom activities.” The prospective adoptive parents initiated the process for him to be transferred to a comparable program in their school district. R.D.’s hearing was determined to be within normal limits. He showed mild features of fetal alcohol syndrome, but “further comprehensive psycho-neurological evaluation is needed to provide more specific and appropriate intervention.” The evaluation process was proceeding, but not yet complete. R.D. was participating individually and with his brother in play therapy “to address issues related to traumatic exposure.” He also was awaiting an occupational therapy evaluation.
Three-year-old P. F. was receiving twice weekly speech therapy as indicated in his IEP. The prospective adoptive parents had begun the process to enroll him in comparable services in their school district. His hearing had been found to be in normal limits. Like his brother, P. F. presented mild features of fetal alcohol syndrome, but needed further evaluation for a confirmed diagnosis. He was participating individually and with his brother in weekly play therapy.
At the section 366.26 hearing, counsel for the children told the court she felt DCFS “did a very careful and considered job of doing a match.” She was impressed that the prospective adoptive parents participated in a therapy session with the children before taking the children into their home. She urged the court not “to drag this out any longer.”
Admittedly the children had language delays and indicators of mild fetal alcohol syndrome, but they were receiving treatment for these problems. Their prospective adoptive parents were aware of their needs, and had already made arrangements so that the children could receive these same programs in their new school district. The children had responded well to the prospective adoptive parents and appeared to have formed a positive attachment in the short time they had known each other. On this record, there is sufficient evidence to support the court’s finding that the children would be adopted within a reasonable time.
Father correctly notes that the court misstated the law with regards to the reinstatement of parental rights if a child is not adopted. If a child has not been adopted after a period of at least three years, the child, not a parent, has the right to petition the court to reinstate parental rights. (§ 366.26, subd. (i)(2).) Counsel for the children corrected the court before the end of the hearing. More importantly, no harm was caused by the court’s misstatement, since the procedure for reinstatement of parental rights was not yet, and might never be relevant in this case.
II
Maternal grandmother claims the court abused its discretion in denying her section 388 petition seeking to have visitation with R. D. and P. F. reinstated. We find no abuse of discretion.
Under section 388, any parent or other person having an interest in a dependent child “may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child . . . to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court.” The petitioner must establish by a preponderance of the evidence that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.)
In July 2007, based on the assessment report by the children’s therapists, the court ordered that visits by mother and grandmother be suspended for a period of 60 days. The court would consider reintroducing grandmother’s visits at the end of that period.
On September 5, 2007, grandmother filed a section 388 petition requesting that the boys be placed with her, or that her visits be reinstated. She asserted changed circumstances including her participation in counseling, completion of a parenting class, and her intention to seek restraining orders against both parents. She claimed it would be in the children’s best interest to resume visitation with her in part because she “had successfully cared for and protected the children for almost four years before they were detained from their parents. I assumed the role of parent to both children and fulfilled both children’s physical and psychological needs for care and affection on a daily basis. The children are bonded to me and I am bonded to them.” She asserted she is “the only ‘mother’ my grandchildren know, and they are like sons to me.” The children’s counsel opposed the petition.
On September 24, 2007, after hearing argument on the petition, the court granted a hearing on grandmother’s petition as to visitation only for November 8. The court ordered that the children’s therapist observe a visit between grandmother and the children and that DCFS prepare a report for the hearing.
The therapeutic visit took place on October 29, 2007. It was observed by two therapists. DCFS reported that the children appeared interested “in engaging play and obtaining initial attention from the caregiver and then from the maternal grandmother. The maternal grandmother brought the children a book each and the maternal grandmother read to the children. As the visit ended the children cleaned up and prepared to leave without complaint and without crying.” At the end of the visit, they saw their maternal aunt in the lobby. She mentioned mother to the children, which caused P. F. to cry. The caregiver reported she observed no negative behavioral effects after the visit. One of the therapists told the social worker she would like to observe a second visit between grandmother and the children, without other family members present. This was scheduled for November 19. On November 8, the court continued the matter to December 20.
At the November 19 visit, the children’s therapists observed that the children welcomed their grandmother, then returned to their own play, easily separating from her. They looked toward their foster mother more than to their grandmother for attention and approval. When it was time for grandmother to leave, the children “appropriately said their good-byes.” They did not have any problems disengaging from grandmother, displayed no anxiety or negative reaction to her leaving, and returned to their play immediately. The social worker asked the therapists whether there would be any long term impact on the children and whether they would forget her if they had no contact. He was concerned about the impact of fetal alcohol syndrome on the children’s memory. The therapists explained that the syndrome is more likely to affect the children’s extrinsic memory rather than intrinsic memory. Thus “it would be safe to say that these two children will probably not forget their maternal grandmother due to the intrinsic memory they already have of her since birth.”
According to the social worker who observed the visit, the grandmother “appeared to want to engage the children but the children would not mind her very much.” In a meeting with one of the therapists after the second visit to discuss further visits with maternal grandmother, the therapist recommended that grandmother’s visit continue in a therapeutic setting, if at all.
The December 20, 2007 hearing date was continued because of a calendar conflict to February 4, 2008 for a contested hearing on the section 388 petition and for the section 366.26 hearing. The court ordered that grandmother could have therapeutic visits with the children during that interim period; DCFS had discretion to liberalize visitation in consultation with the children’s therapist. On February 4, 2008, the court considered and then denied grandmother’s section 388 petition.
Grandmother claims the court denied her a timely hearing on her section 388 petition, and then summarily denied the petition without giving her the opportunity to be heard. This claim ignores the lengthy process we have recounted by which the court considered the merits of grandmother’s petition. The court felt it was necessary to obtain additional information about the effect of grandmother’s visits on the two children, and for that reason ordered first one visit, and then a second visit, to be observed and reported on by the children’s therapist. The continuances necessitated by these therapeutic visits were not arbitrary; they were designed to obtain the best information regarding the merits of grandmother’s petition regarding visitation.
After observing the two visits with grandmother, the children’s therapist had “emphatically stated” that visitation should only continue with grandmother “in a therapeutic setting if at all and that the children should not be returned to the maternal grandmother as the children need on going support and services, which the therapist firmly did not believe that the maternal grandmother would be able to provide for the children.”
When the hearing was continued again from mid-December to early February because of calendar conflicts, the court permitted grandmother to continue with visitation in a therapeutic setting. During this period, she was not arbitrarily denied the visitation she sought in her petition; it was instead permitted in accordance with the therapist’s recommendations.
By the date of the hearing, the circumstances had in fact changed. The children had very recently been moved to a pre-adoptive placement. Their attorney argued to the court that “at some point it’s going to be up to the prospective adoptive parents whether they continue the grandparents’ visitation. Both the social worker and the therapist don’t think that there’s value to continuing the visitation, so I would ask that it cease for now, and then we can revisit it again later once they become established in their preadoptive home.”
Given the observations of the children’s therapists that the children showed only limited interest with grandmother during the therapeutic visits, and the children’s recent placement in a pre-adoptive home, the court was well within its discretion when it suspended “for now” the children’s visits with grandmother. The court denied grandmother’s petition without prejudice, explicitly stating it would “reconsider it as appropriate depending on what happens with the rest of this case. I’ll certainly reinstate it if the children aren’t in an adoptive home. If they are in an adoptive home what’s the point?” This was not an abuse of discretion.
This also was not a summary denial of grandmother’s section 388 petition without a hearing. In initially granting a hearing on the petition in September 2007 as to grandmother’s request to change the visitation order, the court recognized its need for additional information regarding the benefit or harm to the children likely to result from grandmother’s visitation. By the continued section 388 hearing date of February 4, 2008, the court had that information in the form of reports on the therapeutic visits and reports from the children’s therapists and social worker on the visits and on the children’s recent placement and need to adjust to their new home. At the hearing, the court heard argument on the merits from grandmother’s counsel and from counsel for DCFS, mother, and the children. Only after hearing argument did the court decide that the children’s best interest would not be promoted by the requested change of order. (§ 388, subd. (c).) This was sufficient. (See In re C. J. W. (2007) 157 Cal.App.4th 1075, 1080-1081.)
III
Grandmother also claims the court abused its discretion in denying her section 827 petition for disclosure of the record. We have no jurisdiction to review this order.
Grandmother filed a notice of appeal from the denial of her section 388 petition on February 4, 2008. On this same date, she filed the section 827 petition for disclosure. The February 4 notice of appeal did not include the order denying the petition for disclosure, since that petition was not denied until March 11, 2008.
Where, as here, several orders occurring close in time are separately appealable, each must be expressly specified either in a single notice of appeal or in multiple notices of appeal in order to be reviewable. (DeZerega v. Meggs (2000) 83 Cal.App.4th 28, 43; see § 395.) The March 11 order is not included in grandmother’s original notice of appeal, nor in a separate notice of appeal. We are thus without jurisdiction to consider the order, and we dismiss that portion of the appeal.
DISPOSITION
The portion of grandmother’s appeal challenging the denial of the section 827 petition is dismissed. The other orders are affirmed.
We concur: MANELLA, J.,SUZUKAWA, J.