Opinion
F081931
06-10-2021
In re MADISON C. et al., Persons Coming Under the Juvenile Court Law. KINGS COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. EMILY E., Defendant and Appellant.
Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant and Appellant. Lee Burdick, County Counsel, and Risé A. Donlon, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Kings County, Nos. 19JD0007, 19JD0008 & 19JD0009 Jennifer Lee Giuliani, Judge.
Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant and Appellant.
Lee Burdick, County Counsel, and Risé A. Donlon, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
THE COURT[*]
Emily E. (mother) appeals from an order terminating her parental rights to her now 14- and four-year-old daughters, Madison C. and S.E., and 12-year-old son, Trent C. (Welf. & Inst. Code, § 366.26.) Mother contends the juvenile court erred in terminating her parental rights because there was insufficient evidence the children are likely to be adopted. We disagree and affirm.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2019, mother and her husband, Daniel E. (stepfather), lived together in California with mother's daughter and son, then 12-year-old Madison and 10-year-old Trent, and the daughter they shared together, then two-year-old S.E. That month, the Kings County Human Services Agency (Agency) filed a section 300 petition alleging stepfather physically abused Madison by choking, pushing, and slapping her in the face, and sexually abused her when they lived in Missouri and in December 2018, when they lived in California. The petition alleged mother knew of the abuse and failed to protect Madison. The petition further alleged mother and stepfather engaged in domestic violence in the children's presence and Trent and S.E. were at risk of similar abuse and neglect. The children were taken into protective custody and ultimately detained. They were placed together with a relative.
The father of Madison and Trent is deceased. S.E.'s father, Daniel E., separately appealed from the order terminating his parental rights, which we affirmed in In re S.E. (May 6, 2021, F081742 [nonpub. opn.]).
Jurisdiction and Disposition
The Agency's reports for the jurisdiction/disposition hearing recommended the children remain out of the home and mother and stepfather receive reunification services. Madison and Trent were interviewed. Madison described stepfather sexually touching her when they lived in Missouri, which began when she was eight years old, and in California. She said stepfather took her bedroom door off the hinges so he could “mess with me more.” Madison told mother about the sexual abuse, but mother did not believe her. She also told her cousin and aunt, as well as her grandmother, but then denied it happened because she saw telling the truth was hurting her family and she was worried about what could happen. Madison had witnessed domestic violence in the home and feared what stepfather might do.
Trent reported an incident of domestic violence that occurred a week earlier, in which stepfather hit mother with his fist and tripped her, and mother hit stepfather in the face. Trent was worried mother would get hurt and called law enforcement. He had witnessed other incidents as well. Both Madison and Trent did not want to live with stepfather ever again. They wanted to be placed with their maternal cousin or their father's ex-wife, who lived out of state.
Mother acknowledged stepfather took the door off of Madison's bedroom, his discipline techniques were extreme at times, and there was domestic violence in the home, though she denied anything like the fight her son described. Mother knew of Madison's first allegation of sexual abuse against stepfather in Missouri, but at the time, she never left Madison alone with stepfather; mother knew the sexual abuse did not occur, as she knew her husband and he would not do that. During a law enforcement interview, stepfather denied sexually abusing Madison.
The children were all healthy and appeared to be developmentally on track. The two older children were in school and there were no reported educational concerns. The children were awaiting mental and developmental assessments.
At the contested jurisdiction/disposition hearing held on February 7, 2019, mother and stepfather submitted on jurisdiction, but argued for return of the children. The juvenile court found the petition true, took jurisdiction, and found by clear and convincing evidence the children should be removed from parental custody. Reunification services and supervised visits were ordered for mother and stepfather.
Six-Month Review Hearing
The Agency's report for the six-month review hearing recommended that Madison and Trent be returned to mother and S.E. be returned to stepfather and mother, and the parents receive family maintenance services. S.E. was on a trial visit with mother and stepfather, which the juvenile court authorized in July 2019, and the two older children were on an extended visit with mother. Mother and stepfather had separated and were living apart.
Madison had changed schools due to a placement change and having behavioral issues at school. The children completed their mental health assessments and they all qualified for services. Madison was diagnosed with major depressive disorder. She started attending weekly individual therapy sessions in June 2019 to address her behavioral issues that included getting mad easily, an inability to control her emotions, and getting upset when she did not get her way. Trent was diagnosed with “Other Childhood Emotional Disorder.” He did not qualify for wraparound services, but he was going to be referred for therapeutic behavioral services (TBS). S.E. was diagnosed with reactive attachment disorder and was attending weekly therapy sessions.
Upon their initial removal, the children were placed together with an extended family member, S.E.'s paternal cousin. Madison, however, began acting out, faking that she was pregnant and had a miscarriage, and there were concerns mother was having unsupervised contact with the two older children, who were reportedly making false statements that Madison lied about stepfather sexually touching her. The children were removed from the paternal cousin on April 11, 2019, due to Madison's behavior and placed in separate homes-Trent and S.E. were placed together with S.E.'s paternal grandmother, while Madison was placed in a foster home. Two months later, Trent was moved from S.E's paternal grandmother due to his behaviors, which included threatening paternal grandmother, telling her to pick up food from the floor, not wanting to follow placement rules, threatening to burn her clothes, and cursing. Trent was placed in a foster home.
At the August 1, 2019 review hearing, the juvenile court ordered the two older children returned to mother with family maintenance services, and S.E. returned to stepfather and mother on alternate weeks with family maintenance services. The exchange of S.E. was to take place at the police station. A 12-month review hearing was set for January 24, 2020.
Section 387 Petitions and Detention of the Children
The parties were back before the juvenile court on September 19, 2019, because stepfather and mother failed to comply with the court's order on the weekly exchange of S.E. Madison, who was taken to the emergency room after cutting herself, told social workers she was worried about S.E. in stepfather's care because of what happened to Madison. Madison said stepfather had been coming to the home to pick up and drop off S.E. and Madison did not want him coming there. Madison was worried mother and stepfather would get back together. The parents admitted they had been exchanging S.E. at mother's home. The juvenile court admonished stepfather and mother and reiterated the order to exchange S.E. at the police station.
On October 15, 2019, the Agency filed a section 387 supplemental petition as to S.E., alleging she was at risk of harm while in stepfather's care because Madison disclosed additional information about her sexual abuse allegations against stepfather in an October 10, 2019 forensic interview conducted by the district attorney's office. The Agency recommended S.E. be detained from stepfather but remain in mother's care under a family maintenance plan.
In the forensic interview, Madison disclosed stepfather began digitally penetrating her when they lived in Missouri and after they moved to California, he had anal sex with her, using force to hold her down. The day after Madison's interview, stepfather was arrested and charged with four forcible sexual assault counts.
The Agency contacted mother on October 14, 2019, and advised her the children were not to have contact with stepfather and she should contact law enforcement if he attempted contact. Mother thought the charges were “bullshit” and she did not know if she believed the allegations. Mother did not want to make a comment that would have the children removed from her care.
At the October 16, 2019 detention hearing, the juvenile court detained S.E. from stepfather's care. That same day, the Agency filed a section 387 supplemental petition to remove the children from mother's care based on Madison's forensic interview and father's arrest. In addition, mother signed bail documents to have stepfather released from custody, she had been in contact with him following his arrest, and she did not want Madison in her home. Madison was afraid to return to mother's home and said mother had telephone contact with stepfather while Madison was present. Madison also said mother called her a liar and told her she was getting an innocent man into trouble. The juvenile court detained the children from mother at the October 21, 2019 detention hearing. The juvenile court also found visitation between mother and Madison was detrimental and ordered that no visits occur.
The Section 387 Jurisdiction/Disposition Hearing
In a statement of probable cause the Agency submitted in support of a protective custody warrant and the Agency's jurisdiction/disposition report for S.E., the Agency repeated and expanded on Madison's allegations of sexual assault and mother's refusal to believe her. The Agency stated in a November 5, 2019 addendum report that the children were not placed together. The concurrent plan for the children was adoption. Several family members who were interested in adoption had come forward. The Agency planned to submit International Compact on the Placement of Children (ICPC) requests on the children's behalf, as almost all the interested family members were out of state.
A contested jurisdiction/disposition hearing on the two section 387 petitions was held on January 29 and 30, 2020. In a January 29, 2020 addendum report, the Agency reported stepfather had two criminal cases pending that pertained to Madison, one in which he was charged with misdemeanor cruelty to a child by inflicting injury, and the other in which he was charged with six felonies. On November 12, 2019, mother pled no contest to cruelty to a child.
Madison was attending weekly therapy sessions to assist her with her behavioral issues and trauma. She was receiving TBS and was making progress toward her goals by developing coping skills and communicating her feelings; TBS services had been extended for 30 days. The TBS case supervisor had seen progress and improvement in Madison's behavior. Trent had been receiving weekly TBS at school and at home with his care provider, but those services were closed in mid-December because Trent was stable, he was making progress toward his goals, and his care providers were able to manage his behavior. S.E., who had attachment issues, was attending weekly therapy sessions. She showed no signs of attachment to father, but she attached well to mother and followed her directions. S.E's speech had improved while in mother's care.
Madison was placed with a non-relative extended family member (NREFM), who was her mother's best friend, where she felt safe and protected. There were no concerns with the home environment and the care provider was meeting Madison's needs. Trent and S.E. were placed together in a relative placement home, where they reportedly were doing well. Trent did not want to visit mother and wanted to live with his current care providers and their children. There were no concerns with Trent and S.E.'s home environment and the care provider was meeting their needs. The children's concurrent plan continued to be adoption.
Stepfather, mother, and maternal grandmother testified at the contested jurisdiction/disposition hearing. Stepfather denied physically or sexually abusing Madison and claimed he had not been left alone with her since July 2018. Mother denied stepfather physically abused Madison, but she did not know if he sexually abused her. Mother said Madison told her in 2018, when they were on vacation in Missouri, that stepfather sexually abused her; mother had maternal grandmother talk to Madison. When they returned to California, mother would not let father and Madison be alone together. Maternal grandmother said Madison told her in the summer of 2018 that father sodomized her; when she told Madison they needed to report it, Madison became upset and said she made it up because she did not want to return to California.
The juvenile court found the section 387 petitions true and that continuing S.E. in father's home, and the children in mother's home, put the children at substantial risk of harm. Reunification services were not offered to either parent because the maximum time allowed for services under section 361.5, subdivision (a)(1)(B) had expired. The juvenile court set a section 366.26 hearing for May 21, 2020.
The Agency's Reports for the Section 366.26 Hearing
A May 8, 2020 Agency report for the section 366.26 hearing stated the children were adoptable, but more time was needed to assess the appropriate plan. Madison was living with the NREFM, while Trent and S.E. lived together with S.E.'s paternal cousin, who they had been placed with when they were initially removed from parental custody in January 2019. The children had not had any placement disruptions since being placed in these homes on October 16, 2019. The children's care providers were meeting their needs and the children consistently reported they were comfortable with them and had not expressed any concerns about their placements.
Madison was in the eighth grade and progressing well in the distance learning environment. While she chose not to log into the program or complete assignments for a three-week period, Madison was working diligently toward completing her studies by the end of the 2020 summer school session. Trent was in the fifth grade and an average student who was at grade level in math and reading. Due to the COVID-19 restrictions, he was completing the school year online with the support his care providers and teacher. S.E., who was not school age, was not in a preschool program.
The children all continued to receive mental health services. A May 20, 2020 addendum report provided information on their progress. Madison, who was diagnosed with posttraumatic stress disorder (PTSD), was receiving counseling services once a week. Madison's presenting problems were being able to manage depressive thoughts associated with PTSD, including sadness, isolation and suicidal thoughts, so those symptoms would not impact school attendance, relationship development, foster care placements, or hospitalizations. Madison's therapist reported her prognosis was good due to her compliance and active participation in mental health services. The therapist recommended she continue individual therapy “in order to continue to learn healthy coping skills in order to increase her emotional distress tolerance.”
Trent was receiving counseling services once every three weeks and actively participated in both individual and collateral therapy. His therapist reported Trent had demonstrated progress with his initial problem behaviors, which included fighting, punching, and exhibiting excessive anger. Trent had been “observed to use his words to peacefully discuss his emotions, engage in more effective coping skills, and to mostly listen to interventions/instructions well in session.” While Trent had a few physically aggressive altercations at school since living with his current care provider, he had repeatedly been observed to engage in effective problem-solving communication and behavior, to accept accountability for undesirable behavior, and to be obedient to the care provider's demands. Trent expressed unfavorable feelings about one of his sisters, but the therapist lacked information about his ability to peacefully interact or live with his siblings. The therapist noted Trent continued to demonstrate potential to control his anger and recommended he continue to receive mental health services until his behavioral and emotional improvements remained stable at school and with authority figures. The social worker noted the therapist agreed to have more focused conversations with Trent about his feelings toward his siblings and to address any concerns in that regard so issues that may create placement disruptions could be resolved.
S.E. was receiving weekly counseling services. The therapist noted visits with multiple care providers had affected S.E.'s adjustment, resulting in regressed behavior after visits, such as wetting herself, using baby talk, being defiant, and excessive crying or whining, as well as confusion in identifying the primary attachment figure, poor boundaries and inappropriate displays of affection toward adults. The current focus of treatment was to teach S.E. to practice appropriate boundaries while interacting with familiar and unfamiliar individuals and to express her thoughts and emotions appropriately. S.E.'s prognosis was good due to the care provider's involvement in treatment and use of skills learned in treatment to consistently set and establish boundaries and maintain structure at home. The therapist recommended S.E. continue to participate in treatment with her care provider to help her effectively manage upcoming adjustments, reduce regressed behavior, and maintain or exceed her current level of functioning.
Relatives had requested placement of the children. The juvenile court signed ex parte applications and orders on March 26, 2020, asking Missouri to initiate the ICPC process on the children's behalf. The Agency subsequently submitted ICPC packets to Missouri for the older children's paternal grandmother and the children's maternal grandmother, maternal stepgrandmother, and maternal great-grandmother, but had not received a response. S.E.'s paternal grandmother submitted a new request for placement in November 2019 and was approved for placement of two children in January 2020. There were no known concerns with her home.
The children had been visiting each other weekly. Their care providers, who arranged and supervised the visits, reported the older children would trigger each other and had a difficult time communicating, resolving conflict, and controlling their reactions when they were together. Visits often ended prematurely because the children were unable to be redirected to positive interactions. The children mostly enjoyed contact and visits with each other and wanted them to continue. There had not been in-person visits during the COVID-19 pandemic, but the older children said they could talk via chat or telephone.
The Agency analyzed the likelihood of adoption and the proposed permanent plan. The social worker described Madison as an “articulate, friendly, intelligent, fun, and adorable” 13 year old, with no known medical concerns or identified developmental delays. While she had a placement disruption related to her previous care providers' belief she made false statements and was manipulative, the disruption also was due to the children's family members placing negative pressure on the care providers. Madison had been participating in mental health services for the past year and graduated from “WRAP services” three months ago. Madison's mental health had significantly improved in her current placement. Her care provider did not report any significant behavioral concerns and consistently stated she was committed to a permanent plan of adopting Madison. While Madison was adoptable and her current care provider and out-of-state relatives had expressed a desire to adopt her, Madison had ambivalent feelings regarding parental rights and the permanent plan. The Agency therefore requested a 90-day continuance to determine if terminating parental rights was in Madison's best interest and to identify the most appropriate care provider.
The social worker described Trent as a reserved 11 year old with no known medical concerns or identified developmental delays. He had a history of placement disruptions related to previous care providers believing he made false statements and behaved in an aggressive and disrespectful manner; the disruptions also were due to the children's extended family members placing negative pressure on the care providers. Trent's coping skills and self-control had improved since he began engaging in mental health services in March 2019, although his current care providers reported there were still excessive arguments and conflicts.
The social worker described S.E. as a “spunky, sassy” three year old with no known medical concerns or developmental delays. S.E.'s placements had been disrupted due to her older siblings' behavior and extended family members placing negative pressure on the care providers. She had been engaging in mental health services for the past year to address attachment-related concerns and reportedly was improving her boundaries and self-control, although the current care providers stated there were still concerns in those areas.
On April 27, 2020, Trent and S.E.'s care providers asked the Agency to remove them from the home because they were not interested in pursuing a permanent plan of adoption or legal guardianship. The care providers consistently stated the decision was unrelated to Trent and S.E. or their behaviors and expressed personal reasons for not continuing with the permanent plan. While the care providers were willing to continue caring for Trent and S.E. until an appropriate placement could be located, they told the Agency on May 11, 2020, they were no longer willing to provide care without a timeline for Trent and S.E.'s removal due to the grief they and the children were experiencing following their decision not to pursue a permanent plan. After the social workers met with the care providers, they agreed to provide care until the end of the school year.
The social worker opined Trent was adoptable based on his age and lack of significant medical or developmental concerns, while S.E. was adoptable based on her young age, lack of significant medical or developmental concerns and her improving mental health concerns. The social worker noted the relatives who had expressed a desire to adopt the children had not been cleared for placement or assessed for purposes of a permanent plan. Therefore, the Agency asked for a 90-day continuance to determine if termination of parental rights was in Trent's and S.E.'s best interests and to identify the most appropriate care provider.
The social worker believed the older children needed additional time to process their wishes about their permanent plans. While Madison told the social worker she was open to parental rights being terminated and the possibility of adoption by her current care provider, she also said she did not know if she wanted parental rights terminated. Madison wanted a relationship with mother, but did not want to live with her, and while she would be sad if mother's parental rights were terminated, she knew her care provider would not prevent her from having contact with mother. Although Madison initially stated her priority was to live with her siblings, regardless of who their care provider was or where they lived, she also expressed a desire to remain in California with her care provider, regardless of where her siblings lived.
Trent told the social worker he did not know what he wanted regarding adoption or a permanent plan. He did not want to return to mother's care and was open to parental rights being terminated, but he needed more time to process the information and available options. If parental rights were terminated, Trent wanted to either remain with his current care providers or live with his maternal great-grandmother in Missouri. While he refused visits with mother over the past three months, he had been visiting her again after the discussion about termination of parental rights. The social worker noted Trent's reserved personality and hesitation to speak openly about his wishes made it difficult to determine whether terminating parental rights was in his best interest. In addition, while Trent was open to being adopted by his current care providers, they were no longer committed to providing Trent with a permanent plan, through no fault of Trent.
The social worker stated the care providers, mental health therapists, and social worker would be focusing on creating the opportunity for the children to live together while minimizing placement disruptions. While the older children tended to trigger one another, which led to multiple placement disruptions and the children being placed apart, the mental health professionals agreed to begin working with the children in a therapeutic environment to address the triggers and improve their coping skills with the hope they could reside together.
The juvenile court granted the Agency's request and continued the hearing to August 20, 2020.
The Agency's Addendum Report
The Agency filed an addendum report on August 10, 2020, in which it recommended termination of parental rights and a plan of adoption. Adoption services had assessed that the children were adoptable, the two older children agreed with a permanent plan of adoption, and adoption was in the children's best interests.
Trent and S.E. were moved to a new placement with nonrelatives on June 3, 2020. On July 22, 2020, Madison was removed from the care of mother's best friend at Madison's request, as they were unwilling or unable to resolve conflicts in the home in a peaceful and productive manner. Madison and the care provider had engaged in a physical altercation when the care provider accused Madison of stealing her cell phone. Madison disclosed the care provider had assaulted her on prior occasions and urged her to lie to social workers about the living situation. In addition, the care provider had not allowed Madison to speak with her therapist for about three weeks. Madison was moved to a new placement.
Prospective adoptive parents had not been identified for the children. Three ICPC assessments were pending completion through Wyoming and Missouri, but they had not been approved or denied. Missouri was in the process of submitting its recommendation as to maternal grandparents, who had submitted all the ICPC requirements, and was in the process of completing the requirements as to maternal great-grandparents, who experienced delays due to technology issues and restrictions related to the COVID-19 pandemic. S.E.'s paternal grandmother and her husband moved to Wyoming. Wyoming's ICPC coordinator confirmed on July 17, 2020, that she received ICPC requests on their behalf, but the Agency had not received any further response. The older children's paternal grandmother and the children's maternal grandmother were no longer being considered for placement, as they chose to discontinue their home assessments.
The Agency again provided its analysis of the likelihood of adoption and proposed permanent plan. The social worker opined the children were adoptable. Madison was adoptable based on her lack of significant medical and developmental concerns. She wanted to be adopted by either the maternal great-grandparents, maternal grandparents, or non-relative care providers who would support her desire to talk about her birth family and connect with them when appropriate. While Madison had only been in her current placement for one month, the care provider was open to pursuing a permanent plan of adoption once they had adjusted to each other. Trent was adoptable based on his age and lack of significant medical and developmental concerns, while S.E. was adoptable based on her young age, lack of any significant medical and developmental concerns, and her improving mental health concerns. Trent and S.E. had been in their current placement for two months. Although the care providers had requested more time for all of them to adjust before committing to a permanent plan of adoption, they reported things were going well and they were open to adoption in the future.
Adoption and legal guardianship had been discussed with the older children, who supported termination of parental rights as they did not wish to live with mother. After Madison's change of placement in July 2020, she consistently stated she supported termination of mother's parental rights and placement in an adoptive home. While Madison wanted to be placed with her siblings and for them to be adopted together, she also supported remaining in separate homes if they could have contact with each other. Madison stated she wanted to remain in California with non-relative care providers, but also stated a desire to move back to Missouri to be adopted by her grandparents or great-grandparents. Due to Madison's uncertainty, the social worker noted Madison required additional time to process her own wishes regarding who her prospective adoptive parents would be. Trent consistently stated since June 2020 that he supported termination of parental rights because he did not want to live with mother. He was open to being adopted by his great-grandparents in Missouri, his current care providers, or other non-relative foster parents.
The Court Appointed Special Advocates' Report
The children's Court Appointed Special Advocate (CASA) filed a report about their circumstances. Madison told the CASA she was having a disconnect with her mental health provider and she asked the Agency to consider finding a new therapist. Madison's care provider told the CASA on August 10, 2020, it was possible Madison had not attended a therapy session since June due to a telephone restriction during her prior placement.
Madison transferred schools in November 2019 after reporting to school officials and her care provider that another student was sexually harassing and bullying her. Madison successfully fulfilled the requirements to promote to high school. Due to her placement change, she would be attending a new high school with distance learning; she was looking forward to school. Trent successfully completed fifth grade and would be starting sixth grade at a new school due to his placement change, while S.E. was attending daycare.
The CASA explained Madison's placement change at the end of July 2020 was necessary due to concerns about the care provider. Her new care providers reported she was doing great and adapting well to her new home, which consisted of the married care providers, their daughter and son, and another dependent youth. Trent and S.E. were placed in a home with a married couple, who reported they were adapting well. Madison continued to have ongoing contact with extended out-of-state relatives, including her maternal great-grandmother, who also spoke regularly to the other children.
Since the placement changes, the children had only one sibling visit in August 2020 to celebrate Trent's birthday. The care provider did not observe any negative interactions between the children, which the CASA noted was a “great improvement from where they were many months ago.” The care providers were comfortable contacting each other and supervising visits; they wanted to provide opportunities for the children to build and heal their relationships.
Madison's care providers shared she was good with her personal hygiene and took care of her chores without prompting. Trent and S.E.'s care providers said they were doing well and performing age appropriate tasks and self-care. Trent was building a great relationship with his care providers, while S.E. was enjoying playtime with new friends at daycare. S.E. was very sociable and maturing appropriately.
Madison's phone privileges were removed due to concerns she was having inappropriate contact with a young man in Missouri. Trent and S.E.'s care providers had minimal to no concerns about their progress. Trent exhibited a few defiant behaviors, but he was easily redirected to use the skills he learned in therapy. He had “made a grand increase in personal growth”; he talked through his emotional outbursts and expressed his feelings without much redirection. The care providers described S.E. as a very energetic, happy, active four year old. While they observed some of the triggers that caused her to become aggressive or melt down, they had decreased significantly since her initial transition to their home. The CASA noted that overall, the children seemed very happy in their new placements.
Although the older children expressed a desire to find a placement for all three children, they were happy in their current placements if that were not possible. Madison wanted to establish a relationship with mother and maintain close contact with her maternal out-of-state relatives with whom she maintained phone contact. Trent's care providers heard him say he enjoyed their home and hoped to be adopted into the family. They reported S.E. was doing exceptionally well and they felt keeping the two children together would greatly benefit their mental health and growth.
The Section 366.26 Hearing
At the August 20, 2020 hearing, the children's attorney, who had seen the children, updated the juvenile court about the children's status. The attorney said the children were “doing amazing” and seemed “so happy.” Their relationships with each other had improved. All three children seemed happier than the attorney had seem them during the case. S.E. told the attorney she really enjoyed where she was living. The attorney spoke in depth with the older children and they agreed with the Agency's recommendation.
The parents requested a contested hearing. The section 366.26 hearing was continued and ultimately held on September 10, 2020. Mother filed a section 388 petition requesting family maintenance services, while stepfather filed two section 388 petitions asking for reunification or family maintenance services as to S.E. The juvenile court set the petitions for hearing at the section 366.26 hearing.
The Agency filed a lengthy report recommending denial of the section 388 petitions. The Agency noted that while the CASA recommended termination of mother's parental rights, she recommended stepfather's parental rights to S.E. not be terminated based on his relationship with her and he be granted six months of family maintenance services to show the juvenile court he had “openly and proactively” remedied the concerns about his ability to adequately parent S.E. The Agency, however, countered that S.E.'s relationship with stepfather was like her relationship with her care providers; she was comfortable with both. Stepfather insisted there were no concerns he would sexually abuse S.E. because she was his biological child.
The Agency provided an update on the children's current circumstances. Madison had resided in her care providers for about six weeks and was open to remaining with them, while Trent and S.E. had been with their care providers for three months. Trent's mental health services had been reduced to twice per month due to significant improvements in his communication, behavior, and use of coping skills. S.E.'s mental health services had been reduced to twice a month as her behavior had significantly improved. The children's care providers, along with multiple relatives, expressed their commitment to providing the children with a safe, stable, and loving home.
Stepfather and mother testified at the combined hearing on the section 388 petitions and on selection and implementation. Following argument by the parties on the section 388 petitions, the juvenile court stated there was nothing in the petitions to support a finding of changed circumstances. Despite that, the juvenile court set the matters for hearing to give the parents the opportunity to address the court. The juvenile court believed mother's circumstances were changing but not yet changed. With respect to stepfather, the juvenile court could not find changed circumstances as he never addressed the issue of sexual abuse of Madison.
During argument for the selection and implementation portion of the hearing, county counsel asserted the evidence before the court showed the children were adoptable, as multiple people were interested in adopting them, pointing out there had not been any testimony to the contrary. County counsel further argued the evidence did not support a finding that an exception to adoption existed. The children's attorney agreed with county counsel. Mother's attorney stated she did not dispute the children were adoptable; rather, the attorney argued mother had maintained contact with at least Trent and S.E., who would benefit from continuing their relationship with her. Stepfather's attorney stated he could not dispute S.E. was adoptable, as she had no health problems, was well-behaved, was an adorable very active four year old, and there were parties interested in adoption. Stepfather's counsel, however, argued the close bond between stepfather and S.E. was sufficient to find the parent-child relationship exception to adoption.
On the issue of whether the children were adoptable, the juvenile court stated the report provided information by clear and convincing evidence that all the children were adoptable, and since there had been no evidence or argument to the contrary, it certainly could find by clear and convincing evidence the children were adoptable. Turning to the exceptions to adoption, the juvenile court found the parent-child relationship was at issue with respect to mother and stepfather, but it declined to apply the exception. The juvenile court denied the section 388 petitions, found by clear and convincing evidence the children were likely to be adopted, ordered a permanent plan of adoption, and terminated parental rights.
DISCUSSION
Mother contends the evidence does not support the juvenile court's finding the children were likely to be adopted. According to mother, the children were not generally or specifically adoptable due to their placement histories, and their behavioral and mental health issues. Moreover, she argues the lack of evidence of any approved adoptive families willing to take children such as them or of a family sufficiently committed to adopting them precludes a finding of adoptability.
At a section 366.26 hearing, the court must determine by clear and convincing evidence whether it is likely the child will be adopted. (§ 366.26, subd. (c)(1).) The clear and convincing standard of proof “ ‘requires a finding of high probability.' ” (Conservatorship of O.B. (2020) 9 Cal.5th 989, 998.) “Although a finding of adoptability must be supported by clear and convincing evidence, it is nevertheless a low threshold” as the court need “merely determine that it is ‘likely' that the child will be adopted within a reasonable time.” (In re K.B. (2009) 173 Cal.App.4th 1275, 1292.) If the court finds a likelihood of adoption, the court must terminate parental rights, in the absence of statutory exceptions that mother does not argue are applicable here. (In re Celine R. (2003) 31 Cal.4th 45, 53; In re A.A. (2008) 167 Cal.App.4th 1292, 1320.)
In determining whether it is likely a child will be adopted, the juvenile court considers whether the child's age, physical condition, and emotional state make it likely a family willing to adopt the child will be identified, or whether a specific family willing to adopt the child has already been identified. (In re Zeth S. (2003) 31 Cal.4th 396, 406; In re B.D. (2008) 159 Cal.App.4th 1218, 1231; In re Carl R. (2005) 128 Cal.App.4th 1051, 1061.) “A child's young age, good physical and emotional health, intellectual growth and ability to develop interpersonal relationships are all attributes indicating adoptability.” (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1562.) It is not necessary that the child is in a preadoptive home or with a relative or foster family who is prepared to adopt. (§ 366.26, subd. (c)(1); In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) Nevertheless, “a prospective adoptive parent's willingness to adopt generally indicates the [child] is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family.” (In re Sarah M., at p. 1650.)
Some courts have distinguished between generally and specifically adoptable children. General adoptability refers to cases in which the child's personal characteristics are sufficiently appealing that it is likely the child will be adopted within a reasonable time. (In re R.C. (2008) 169 Cal.App.4th 486, 493.) Specific adoptability refers to “unusual cases where a child, due to severe physical or mental needs, may be deemed adoptable based solely on the fact that a particular family wants to adopt the child.” (In re Mary C. (2020) 48 Cal.App.5th 793, 802, fn. 5.) In such cases, the court must determine if there is a legal impediment to adoption. (Ibid.) But the juvenile court is not required to find the child “ ‘generally' or ‘specifically' adoptable.” (Id. at p. 802.) Notably, section 366.26 does not speak in terms of general or specific adoptability and the statutes do not require the Agency's assessment to include evidence of general or specific adoptability-the Agency must merely analyze “the likelihood that the child will be adopted.” (§§ 366.21, subd. (i)(1)(G), 366.22, subd. (c)(1)(F).)
Our review accounts for the heightened standard of proof in the juvenile court. We must determine “whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable” the children were likely to be adopted within a reasonable time. (Conservatorship of O.B., supra, 9 Cal.5th at pp. 995‒996.) But we do not reweigh the evidence. (Id. at p. 1008.) We “view the record in the light most favorable to the prevailing party below and give due deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence.” (Id. at p. 996; accord, In re R.C., supra, 169 Cal.App.4th at p. 491 [“We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or weigh the evidence”].) Since it is the Agency's burden to establish a dependent child's adoptability, sufficiency of the evidence to support an adoptability finding may be raised for the first time on appeal. (In re A.A., supra, 167 Cal.App.4th at p. 1316.)
Applying this standard, substantial evidence supports the juvenile court's finding it is highly probable that all three children are likely to be adopted. None of the children had any medical or developmental issues, and all had positive attributes. S.E.'s care providers described her as a very energetic, happy, active four year old, while the Agency said she was “spunky” and “sassy.” She enjoyed playing with new friends at her daycare; she was very sociable and maturing appropriately. She was able to perform age appropriate tasks and self-care. While S.E. was receiving therapy for adjustment issues, her mental health had improved to the point where therapy was reduced from once a week to twice a month. S.E.'s triggers that caused her to become aggressive or melt down had decreased significantly in the nearly three months she had been with her care providers, who said she was doing exceptionally well.
Twelve-year-old Trent, who the Agency described as reserved, was building a “great relationship” with his current care providers; they were doing a lot of fun outdoor activities, like basketball, and had plans to go fishing. He was an average student who was performing at grade level. As a result of therapy to address his anger and aggressive behaviors, Trent had improved greatly. His TBS services were closed in December 2019 because he was making progress and his care providers could handle his behavior. He learned to engage in effective problem-solving communication and behaviors, accept accountability for his undesirable behaviors, and follow his care provider's demands. He adjusted well to his new placement and his current care providers saw a “grand increase in personal growth”; he talked through his emotional outbursts and expressed his feelings without much redirection. When he was defiant, the care providers were able to redirect him to use the skills he had learned in therapy. Trent and S.E's care providers had minimal to no concerns about their progress.
The Agency described 14-year-old Madison as “articulate, friendly, intelligent, fun, and adorable.” While Madison failed to attend school or complete assignments for three weeks at the outset of the COVID-19 pandemic, she worked diligently to complete her coursework and successfully fulfilled the requirements to promote to high school. Although Madison was not without behavioral concerns, she had made considerable progress in ameliorating them, with her therapist remarking her mental health had improved significantly and her prognosis was good. Madison's current care providers reported she had good personal hygiene and performed her chores without prompting. She was doing great in their home and was adapting well.
This evidence showed all three children possessed good physical and emotional health, intellectual growth, and the ability to develop interpersonal relationships, which supported a finding they were likely to be adopted. In addition, while prospective adoptive parents had not been identified for the children, their current care providers had expressed an interest in adoption once they and the children had adjusted to each other. More importantly, their extended out-of-state family members, who knew the children and had a relationship with them, wanted to adopt them. While the relatives had not yet been approved for placement, their desire to adopt the children, as well as the interest of the current care providers, provided further evidence the children were likely to be adopted.
We disagree with mother's argument that the children cannot be found adoptable due to their behavioral and mental health issues, which disrupted past placements. Each child's behavior and mental health had improved through therapy. Notably, Trent's and S.E.'s mental health sessions had been reduced due to the significant improvement they had shown. The fact the children were continuing in counseling services does not suggest they were not likely to be adopted. Instead, the fact they had shown progress in the ability to process their feelings and manage their behaviors with therapy can be viewed as positive factors.
Moreover, the prospect that a child may have some continuing behavioral or emotional problems does not foreclose a finding of adoptability. (See In re Jennilee T. (1992) 3 Cal.App.4th 212, 224‒225.) There is nothing to suggest the children's issues “were so severe as to make the [juvenile] court's finding of adoptability unsupported.” (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) Prospective adoptive parents generally can be expected to realize children in the dependency system are likely to suffer from emotional problems and may need continued counseling and strong parenting. In that respect, the children's needs were not out of the ordinary.
While the older children's behaviors resulted in the disruption of their placements, other factors aside from their behaviors were involved. Significantly, while Trent had been accused of lying when placed with paternal cousins at the outset of the case, he was able to develop a relationship with them when he was returned to their care after being removed from mother a second time. Although Trent was removed from that placement when paternal cousins decided not to commit to a long-term plan for reasons unrelated to Trent's behavior, that placement demonstrated his improved behavior and ability to develop interpersonal relationships.
In addition, the older children were willing to be adopted regardless of whether they were placed together. While not determinative, the juvenile court was required to consider the older children's wishes. (§ 366.26, subd. (h)(1).) Although Madison is a teenager, she was not found to be difficult to place for adoption due to her age. Indeed, the Agency was able to locate a family interested in adoption even though they were not yet committed to it, despite Madison's age.
We reject mother's claim that where there is no prospective adoptive family, there should at least be evidence of approved families who are available and willing to adopt children such as hers or of a family sufficiently committed to adopting them. Mother's reliance on cases such as In re Jerome D. (2000) 84 Cal.App.4th 1200 and In re Asia L. (2003) 107 Cal.App.4th 498 for this proposition is misplaced, as they do not stand for that proposition. (In re K.B., supra, 173 Cal.App.4th at pp. 1293‒1294.) At most, the appellate courts in both cases noted there was no evidence of approved families willing to adopt children such as those in each case. (In re Asia L., supra, 107 Cal.App.4th at p. 512; In re Jerome D., supra, 84 Cal.App.4th at p. 1205.) Mother, however, ignores the lack of any holding in either opinion to require such proof.
Mother compares her older daughter and son to the children in In re Asia L., in which the appellate court found the evidence failed to demonstrate clear and convincingly there was a likelihood three children, who were not in an adoptive placement, would be adopted within a reasonable time. That case, however, is distinguishable as there two of the children had serious emotional and psychological problems that required specialized placement, and the third child was hyperactive and had a temper. (In re Asia L., supra, 107 Cal.App.4th at p. 512.) Given the children's problems, the lack of evidence of approved families willing to adopt children with the same developmental problems, and that the foster parents of the older children were only willing to explore adoption of them and only expressed an interest in the third child being placed with them, the appellate court concluded the evidence was “too vague” to support an adoptability finding. (Ibid.)
In contrast here, the children do not have extreme behavioral issues or require specialized placement. While their care providers were willing to consider adoption, the extended family wanted to adopt the children. We note that before the juvenile court, mother conceded the sufficiency of the evidence to support an adoptability finding. If mother doubts the basis for the social workers' opinion or wished to explore whether the children's behaviors would be an obstacle to adoption, it was incumbent on her to examine the social worker or other relevant witnesses at the section 366.26 hearing. Her failure to do so leaves us with the present state of the evidence which, after indulging all inferences in favor of the juvenile court's ruling, establishes clearly and convincingly that the children are likely to be adopted within a reasonable time.
DISPOSITION
The juvenile court's orders terminating parental rights are affirmed. [*] Before Levy, Acting P.J., Meehan, J. and De Santos, J.