Opinion
A098708.
7-11-2003
In re S. S., a Person Coming Under the Juvenile Court Law. DEL NORTE COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. RONDA S., Defendant and Appellant.
INTRODUCTION
Ronda S. appeals from an order terminating parental rights over her daughter, S. S. She contends there was insufficient evidence to support the trial courts finding of adoptability.
Because S. S.s father, John B., has not appealed from the order, we set out only the facts concerning Ronda S.
After a February 1 hearing, the court terminated Rondas visitation based on the recommendation of S. S.s therapists, Debra Laughlin and Robert Soper, M.D., who observed "significant signs of stress" (nightmares, aggressive behavior, encopresis and enuresis) following the visits. "The process of visitation," they noted, "is seriously injurious to [S. S.s] mental health for whatever reason."
BACKGROUND
In September, 2000, S. S. (born in early 1997) was removed from her mothers home, placed in protective custody, and detained. Thereafter, jurisdiction was established, and S. S. was declared a dependent of the juvenile court. After the requisite status reviews, family reunification services were terminated and the matter was set for a permanency plan hearing (Welf. & Inst. Code, § 366.26 (hereafter .26)).
All statutory references are to the Welfare and Institutions Code.
In his February 15 report, a Del Norte County Department of Health and Human Services (hereafter Department) social worker indicated four-year-old S. S.s physician believed her bedwetting and nightmares were signs of anxiety. She was "developmentally on target," successfully attending preschool, and receiving psychological counseling. Department recommended termination of parental rights and adoption as the permanent plan for S. S., who had been living with her paternal great-grandparents, Glen and Kathleen N., for over nine months.
In an attached February 12 adoption assessment report, adoption specialist Teddee-Ann Boylan determined S. S. was adoptable. She described her as a polite, obedient, mature, resilient, and likeable child, able to communicate her feelings, and attached to her current care-takers (the N.s were unable to adopt S. S. because of their advanced age), who enjoyed preschool and responded well to a structured environment, but was experiencing sleep disruption and "night terrors." Her medical condition was reportedly good, and she was on track developmentally, but was receiving weekly therapy for her "somewhat unstable" mental and emotional status. Her therapist diagnosed post traumatic stress disorder based on abuse in her mothers home, but the symptoms had decreased.
S. S. had a positive attitude toward being adopted by a "nice new family." A gradual transition into adoptive placement was recommended, with continued contact with the N.s. A "possible adoptive family" had been identified, but a "child available" form had also been sent to every California county. About 20 families had indicated an interest in adopting S. S., creating a pool of home studies to revisit if the identified family should "experience a change of heart."
On February 22, the Department obtained an order for six months of psychotropic medication recommended by Dr. Soper to forestall a return of S. S.s anxiety-related symptoms. The .26 hearing was delayed by an Indian Child Welfare Act compliance process (25 U.S.C. § 1901 et seq.), which resulted in negative findings. In letters dated April 18 and 19 respectively, Dr. Soper and Ms. Boylan recommended proceeding with S. S.s transition into an out-of-county adoptive family.
In her appellate brief, Ronda states (without citation to the record) that the Department informed the court that S. S.s "current foster parents" had requested her removal from their home and indicated they were unwilling to adopt her. She presumes this referred to S. S.s "potential adoptive home." Although the record is not entirely clear, it seems rather to refer to the N.s, with whom S. S. resided during the transition.
At the .26 hearing on April 24, 2002, the court heard testimony from Dr. Soper, Kathleen N. and Ronda S. Soper testified S. S. was "doing better" since she stopped visiting with Ronda and started medication. Ms. N. testified to the strong bond between S. S. and the identified adoptive family. There was no testimony that S. S. might be difficult to place for adoption. In fact, Ms. N. testified that despite the fact that she and her husband were in their mid-seventies, "if it comes to that, we will adopt her." The court found by clear and convincing evidence that S. S. would be adopted, terminated Rondas parental rights, selected adoption as S. S.s permanent plan, authorized out-of-county placement, and set a permanency planning review for August 23.
Ronda filed a timely notice of appeal. (In re Marriage of Adams (1987) 188 Cal. App. 3d 683, 688-689, 233 Cal. Rptr. 534 [date of entry of appealable order is date of entry into minutes unless minutes expressly require written order].)
DISCUSSION
On appeal, Ronda contends only that the courts finding that S. S. was adoptable was not supported by substantial evidence.
As Ronda correctly notes, she has not waived this issue by failing to raise it below. (In re Brian P. (2002) 99 Cal.App.4th 616, 622-623 (Brian P.).)
At a permanency planning hearing, "If the court determines, based on the assessment provided as ordered under subdivision (i) of Section 366.21 or subdivision (b) of Section 366.22, and any other relevant evidence, by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption." ( § 366.26, subd. (c)(1).) "We review the juvenile courts order to determine whether the record contains substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that [S. S.] was likely to be adopted, which was the basis for the courts termination of [Ronda]s parental rights. [Citation.] Clear and convincing evidence requires a finding of high probability. The evidence must be so clear as to leave no substantial doubt. [Citation.] [P] 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.]" (Brian P., supra , 99 Cal.App.4th at pp. 623-624.) "A social workers opinion, by itself, is not sufficient to support a finding of adoptability. [Citation.]" (Id. at p. 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. [Citation.]" (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650,.)
The evidence summarized above was sufficient to support the courts finding of adoptability. This case is distinguishable from Brian P., supra, 99 Cal.App.4th at page 624, wherein the "juvenile court did not have the benefit of an adoption assessment report which would have presented the kind of facts needed to support a finding of adoptability." (Fn. omitted.) "Nor did the child welfare worker supply more facts in her testimony at the hearing." (Ibid.) The four-and-a-half year old boy in that case had had "early developmental difficulties," and "had only recently learned to dress himself. His speech and gait were still in the process of improving. He was unable to make a statement to his child welfare worker, who relied on facial expressions and gestures to infer that he was happy in his foster placement." (Id. at p. 625.) The court held, "This fragmentary and ambiguous evidence was not enough to buttress the Agencys position that Brian was adoptable." (Ibid.) Likewise distinguishable is In re Jayson T. (2002) 97 Cal.App.4th 75, 91 (Jayson T.), in which the court concluded that "evidence that the adopting parents considered one of the two boys to be suffering from reactive attachment disorder throws the adoptability finding into serious doubt."
According to the Jayson T. court, "`Reactive attachment disorder is a psychological condition that means an inability to form loving attachments. It entails difficulty bonding, poor impulse control, and insensitivity to the needs of others. [Citations.]" (97 Cal.App.4th at p. 82.)
After Ronda filed her appellate brief, we granted her request to augment the record with documentation of events that occurred after termination of her parental rights (see Jayson T., supra, 97 Cal.App.4th at p. 78 ["As long as the order terminating parental rights is not yet final, a court should be able to examine whether the child is still likely to be adopted."]). Ronda has not asked leave to file further briefing.
The additional documentation reveals that at the permanency planning review hearing four months after issuance of the challenged order (see ante, p. 3), the Department reported "the adoptive home fell through." In a report filed on February 6, 2003, Departments social worker added only that the out-of-county "fost-adopt placement . . . was found to not be meeting S. S.s needs." She had returned to the N.s home in August, where she had "had her ups and downs." She had some delay in social and emotional development due to her history of neglect and abuse, but had "calmed down" and "overall is doing well." She was doing well in school, both socially and academically. She was continuing with both medication and therapy. "She has a good relationship with her [great-]grandparents and they are meeting her needs." Adoption specialist Boylan continued to believe S. S. was adoptable and that adoption was the appropriate permanent plan for her, and Department so recommended. Minutes of hearings on February 21 and 28 indicate that Department was continuing to seek permanent adoptive parents.
On July 3, 2003, we granted Departments request to augment the record with a May 7 letter in which Boylan reported that a new adoptive family had been found, and placement was scheduled for June 2, with finalization after six months. Boylan also explained, "The failure of [a previous] placement was absolutely not based on S. S.s adoptability, but on the familys inability to accept her as fully as their biological child. She is definitely an adoptable child." At oral argument, Department reported that placement occurred as planned, S. S. was doing well without medication, and finalization is expected by the end of the year.
This additional evidence, without more, does not persuade us to reverse the order terminating Rondas parental rights. To paraphrase the court in In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154, there is still no indication S. S.s behavioral problems are so severe as to undermine the courts finding of adoptability. Moreover, although the law abhors legal orphanage (Jayson T., supra, 97 Cal.App.4th at p. 85), in this case termination of parental rights has not led to "a series of foster care placements" (id. at p. 88), but to S. S.s return to the home of relatives who continue to provide her with a stable and supportive environment, and who apparently will, if need be, adopt her themselves.
DISPOSITION
The order is affirmed.
We concur: Kay, P.J., and Rivera, J.