Opinion
B316634 B318420 B318552 B319726
03-10-2023
In re A.W., a Person Coming Under the Juvenile Court Law. v. D.W. and C.W., Defendants and Appellants. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Elizabeth Klippi, under appointment by the Court of Appeal, for Defendant and Appellant D.W. Aida Aslanian, under appointment by the Court of Appeal, for Defendant and Appellant C.W. Dawyn Harrison, Interim County Counsel, Kim Nemoy, Assistant County Counsel, and Jacklyn K. Louie, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEALS from an order of the Superior Court of Los Angeles County, No. 19LJJP00567B Donald B. Buddle, Jr., Judge. Affirmed.
Elizabeth Klippi, under appointment by the Court of Appeal, for Defendant and Appellant D.W.
Aida Aslanian, under appointment by the Court of Appeal, for Defendant and Appellant C.W.
Dawyn Harrison, Interim County Counsel, Kim Nemoy, Assistant County Counsel, and Jacklyn K. Louie, Principal Deputy County Counsel, for Plaintiff and Respondent.
LUI, P. J.
D.W. (Father) and C.W. (Mother) appeal a juvenile court order terminating their parental rights. (Welf. & Inst. Code, § 366.26.) The sole issue is whether their son A.W. is likely to be adopted. (§ 366.26, subd. (c)(1).) Appellants did not carry their burden on appeal of showing that the evidence is insufficient to support the court's findings. The record shows A.W. is generally adoptable and likely to be adopted by the person who has cared for him continuously since 2019. We affirm.
Undesignated statutory references in this opinion are to the Welfare and Institutions Code. Father's and Mother's appeals have been consolidated into B316634.
FACTS AND PROCEDURAL HISTORY
Appellants have five children: Al. (born in 2010); A.W. (2011); Sa. (2017); Ca. (2019); and Su. (2020). A petition filed by respondent Los Angeles County Department of Children and Family Services (DCFS) was sustained in 2011 as to Al., age one, who had an arm fracture "consistent with inflicted trauma"; Al. returned to parental custody in 2012. DCFS received reports of abuse or neglect in 2013 and 2018.
This opinion focuses on A.W., the sole subject of this appeal, not on his siblings.
A.W. used a feeding tube since infancy. Chronic lung disease required a breathing tube until he was six. He was hospitalized after birth and lived in a nursing facility from age 13 months until 2018, when he moved to appellants' home. He did not know how to eat, tie his shoes, or use the toilet. He was diagnosed with cerebral palsy, intellectual disability, autism, ADHD, and a speech impairment.
In 2019, nurses told DCFS that Mother forced food and vomit into A.W.'s mouth and yelled at him when he gagged or threw up. Appellants isolate A.W., yell if he tries to approach the rest of the family, and blame him for the problems in their home. The paternal grandparents (PGP's) said A.W. is" 'stuck in a bedroom all the time with the doors closed, and the lights off'" and is treated" 'like an outcast . . . like he's nobody.'" The family is not bonded with him. PGP's told appellants they are willing to take care of A.W. if appellants were unable to do so.
Appellants and their children all have disabilities. Father was diagnosed with schizophrenia and bipolar disorder in his youth, and later with a mood disorder and intellectual disability from a chromosomal defect. During his tantrums, he screams and throws things, according to a nurse and PGP's. Father was in and out of psychiatric hospitals during childhood and early adulthood; when he was 12, he molested a six year old. The maternal grandmother said Mother has mental development issues. DCFS wrote that the children are at "very high" risk of abuse or neglect.
The children were detained from parental custody in August 2019. Appellants entered no contest pleas to a dependency petition. The court sustained the petition on grounds that Father has mental and emotional problems that interfere with his ability to care for the children and appellants do not provide proper medical care or supervision. The petition states that A.W. must be fed through a tube, but appellants do not administer his formula as prescribed. A.W. was seen attempting to connect his own feeding tube. Mother force-fed A.W. by mouth, causing him to gag and vomit; a nurse had to intervene. Appellants' medical neglect endangers A.W. and his siblings. A.W. sexually touched a sibling due to lack of parental supervision. The court found there would be a substantial detriment to the children if they remain with appellants.
A.W. has lived with foster caregiver M.R. since he left appellants' home in August 2019. At removal, he had daily tantrums, aggression, resistiveness, and destructive, self-injuring and endangering behaviors. Since his placement with M.R., he eats healthy solid foods, is learning self-care tasks, is happy and comfortable, made significant progress, and no longer requires nursing care. His feeding tube was removed in December 2019.
In September 2020, the social worker observed that A.W. is "adapting to his current surroundings of his foster home and gets along with everyone in his home. He appears to have a trusting and appropriate bond with his foster caregiver." A.W. enjoys visits with appellants "without seeming emotional about it." Appellants were complying with court orders. The court extended reunification services.
In October 2020, Father was arrested and charged with contacting a minor with intent to commit a sexual offense. Mother felt "shocked" and "betrayed" he would do something like this when they are trying to reunify with their children. She planned to divorce, then changed her mind when Father denied the charges, though this affects the possibility of having unmonitored home visits with the children. Father "did not feel he was guilty since he technically did not have sex with a minor."
In February 2021, DCFS reported that A.W.'s health and self-care issues show "vast improvements." He made "fantastic progress on his behavior and skills goals" at M.R.'s home. A.W. previously "lacked the ability . . . to accomplish simple task[s] such as showering and wiping himself." He can now eat without gagging and toilet by himself. M.R. meets all his nutritional, medical, and educational needs. He is doing well in school and meeting or exceeding his goals. Mother calls A.W. once a week for 30 minutes. Father "was less involved and would only say hello." A.W. enjoyed face-to-face visits with appellants and other relatives. M.R. was interested in legal guardianship, not adoption. A.W. is bonded with M.R.
M.R. said A.W. is "a sweet child who gets along with other children." He makes up stories and "simply does not understand right from wrong," but she redirects him when it happens. He is thriving in his placement. Appellants saw A.W. two to four times per month, with a monitor. He was excited to see them and no problems were reported.
DCFS and A.W.'s attorney asked the court to end reunification services. Appellants showed no insight into their maltreatment of A.W., who greatly improved his physical and emotional capabilities once he was removed from them. Appellants continue to deny wrongdoing.
On March 24, 2021, the court terminated reunification services, finding that appellants are in partial compliance with the case plan and returning A.W. to parental custody would create a substantial risk of detriment. The children have special needs requiring a high level of care. The court said, "There is evidence that [appellants] lack real insight or the ability to effectively parent these high-need children." They have not progressed beyond monitored visits, and there is no substantial probability the children could be returned any time soon, especially given Father's arrest for contacting a minor for sex. The court set a permanent plan hearing.
In July 2021, DCFS submitted a report for the permanent plan hearing. It wrote that A.W. has an intellectual disability and medical issues but "participate[s] in conversations and answers questions. He is mobile and able to consume food on his own. He is able to do most things that children his age can accomplish, however, he has limitations that affect his emotional stability, physical aggression, and self-care." The government regional center helps with his behavior and skills. He enjoys third grade and being with classmates. His teacher "reports that he continues to do quite well in his classes. Specifically, he is focused, participates well in small groups, and does not demonstrate behavior concerns." A.W. has not had an emotional outburst or engaged in physical aggression since December 2019. M.R. redirects A.W. before an outburst by explaining a situation; she reinforces desired behavior and gives him "lots of attention and support." A.W. has monitored visits with appellants and other relatives.
A.W. no longer gags while eating or needs diapers, as he did when removed from appellants. Many of his early delays have disappeared. He has "a sense of resilience" and acts in age-appropriate ways. M.R. has another medically fragile child in her home, who is friendly with A.W. M.R. was interested in caring for A.W.'s sister Sa. as well.
Though Sa. has mental and physical disabilities, both her current foster family and M.R. are interested in adopting her.
DCFS identified the permanent plan as adoption. In April 2021, M.R. said she was open to adoption but wished to know more about services available to A.W. in the future. M.R. has been a foster parent for over 20 years, caring for fragile children who "thrive and leave the home doing better than before." Though she has not adopted other children, A.W. "has become such a part of her family and they all love him very much." A.W. refers to M.R. as "mom" and is at ease in the home. Mr. R. is very involved but is not an approved "resource parent"; he cannot complete the training because he speaks Spanish. M.R. said "she wanted to adopt [A.W.] and she thought her husband would want to as well." Plans were made to assist Mr. R. to complete the necessary training, which he applied for in June 2021. A.W. said his parents and siblings, whom he regularly sees, are his first choice for his "forever family." M.R. knows that family is important to A.W. and is open to contact with them if she adopts him. Between March and June 2021, appellants saw A.W. three times and canceled six visits.
In October 2021, DCFS reported that M.R. and her husband still want to adopt A.W. Mr. R. was working with the foster family adoption department to complete his requirements; he successfully completed many of the necessary classes but still had more classes to take. A.W. reiterated that he "wanted his current home to be his forever home if he is unable to return to his parents."
In December 2021, DCFS reported that appellants have not visited A.W. for months; they reported car trouble or could not afford fuel. The missed visits could "interrupt [A.W.'s] behavior or mental health stability." M.R. decided to pursue a single applicant adoption. Though Mr. R. completed most of his classes to qualify as an adoptive parent, he and M.R. agreed it was best for M.R. to proceed alone because Mr. R. was spending more time in Mexico. DCFS planned to get a signed spousal waiver when Mr. R. returned from Mexico.
A behavioral report stated that A.W.'s current home "continues to be a good match" for his needs. He has not had emotional outbursts or physical aggression for two years. He bathes himself and asks to take a shower if he has a messy bowel movement. Though he is a picky eater, as is typical for his age, he has good table manners. He can identify stop signs and red lights. He has occasional toileting accidents.
The permanent plan hearing was held on February 3, 2022. DCFS asked the court to terminate parental rights. Father objected on the grounds that he is bonded with A.W., though they have not had recent visits. He asked that A.W. be placed with the paternal aunt. Mother objected to the termination of her rights and the plan of adoption, noting that A.W. stated that his first choice was to live with his parents. Mother "has visited with [A.W.] to the best of her ability." Adoption would interfere with the bonds between the siblings.
Counsel for A.W. joined with DCFS's argument that appellants failed to show regular visitation with A.W., a beneficial relationship with him, or a detriment to A.W. if the relationship ended. A.W.'s attorney noted that he "does not have such a significant relationship with parents or siblings to warrant avoiding a permanent home via adoption," observing that A.W.'s significant delays were remedied in the care of the foster parents.
The court found by clear and convincing evidence that A.W. is adoptable. Appellants did not maintain regular visitation or establish a bond with him; the benefit to A.W. of a relationship with appellants or his siblings is outweighed by the benefit he would receive in a stable, permanent home, and adoption is in his best interests. No exception to adoption applies. The court terminated parental rights and transferred the case for adoptive planning and placement. M.R. was designated as the prospective adoptive parent.
DISCUSSION
1. Standard of Review
We review the court's finding that A.W. is adoptable under the substantial evidence standard. (In re Josue G. (2003) 106 Cal.App.4th 725, 732.) When the court finds a fact is proved by clear and convincing evidence, we determine if "the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true. . . . [We] must view the record in the light most favorable to the prevailing party below and give appropriate 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." (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011-1012.) Appellants have the burden of showing the evidence is insufficient to support the court's adoptability finding. (In re R.C. (2008) 169 Cal.App.4th 486, 491.)
Although appellants did not object to the adoptability finding at the section 366.26 hearing, parents may challenge on appeal an agency's failure to carry its burden of proof at the hearing, even without an objection. (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1559-1561; In re Brian P. (2002) 99 Cal.App.4th 616, 623; In re Erik P. (2002) 104 Cal.App.4th 395, 399-400 [agency has an "obligation to provide the juvenile court with the necessary facts regarding adoptability"].)
2. A.W. Is Adoptable
Appellants contend that the juvenile court erred in finding A.W. is adoptable. They assert that there is a legal impediment to adoption because M.R. does not have written consent from her husband to adopt as a single applicant, making it unlikely A.W. will be adopted in a reasonable time. These contentions are without merit.
a. Adoption Standards
The court may terminate parental rights if it determines by clear and convincing evidence that the child likely will be adopted within a reasonable time. (In re J.W. (2018) 26 Cal.App.5th 263, 266.) "The fact that the child is not yet placed in a preadoptive home nor with a relative or foster family who is prepared to adopt the child, shall not constitute a basis for the court to conclude that it is not likely the child will be adopted." (§ 366.26, subd. (c)(1).) A prospective adoptive parent need not be" 'waiting in the wings.'" (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649 (Sarah).) Adoption is the permanent plan preferred by the Legislature. (In re Josue G., supra, 106 Cal.App.4th at p. 732.)
A child is generally adoptable if age, physical condition, mental state, and other factors make adoption likely within a reasonable time by either a prospective adoptive family or another family. (In re I.W. (2009) 180 Cal.App.4th 1517, 1526, disapproved on other grounds in Conservatorship of O.B., supra, 9 Cal.5th at p. 1010, fn. 7; Sarah, supra, 22 Cal.App.4th at pp. 1649-1650.) A child is specifically adoptable" 'where the child is deemed adoptable based solely on the fact that a particular family is willing to adopt him or her'" unless there is a legal impediment to adoption (I.W., at p. 1526; In re J.W., supra, 26 Cal.App.5th at pp. 267-268.)
The" 'likely to be adopted' standard is a low threshold." (In re J.W., supra, 26 Cal.App.5th at p. 267.) "[A] child may only be found to be difficult to place for adoption if there is no identified or available prospective adoptive parent for the child because of the child's membership in a sibling group, or the presence of a diagnosed medical, physical, or mental handicap, or the child is seven years of age or older." (§ 366.26, subd. (c)(3).)
b. A.W. Is Generally Adoptable
Father contends that A.W. is not adoptable due to his age and medical, behavioral and therapeutic needs. Contrary to Father's claims, the record shows A.W.'s condition vastly improved by the time of the hearing and did not take him out of the realm of being adoptable.
Appellants spent little time with A.W.: He lived with them during the first year of his life, then spent five years in a nursing facility where he did not receive socialization or life skills. At age six, appellants brought A.W. home but closed him in a dark room, did not feed him properly, and limited his interactions with them. PGP's said appellants were not bonded with him. DCFS removed A.W. from appellants at age seven.
M.R. worked diligently from August 2019 on to ensure that A.W. learned to feed himself and attend to his own hygiene. He no longer required a feeding tube or nursing care and gained social skills. By contrast, no gains were made while A.W. lived in appellants' home. The DCFS reports state that A.W. improved "significantly" after removal from appellants' home, where PGP's observed that he was treated like "an outcast."
"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." (Sarah, supra, 22 Cal.App.4th at pp. 1649-1650; In re Josue G., supra, 106 Cal.App.4th at p. 733.)
Appellants focus on A.W.'s difficulties in life, citing medical issues at birth that required breathing and feeding tubes; his placement for five years in nursing care; his diagnoses of physical and mental disabilities; and his aggression and instability. However, our colleagues in Division Six of this district wrote that "[c]hildren with special needs . . . may nonetheless be adoptable. Disability is not a bar to adoptability." (In re J.W., supra, 26 Cal.App.5th at p. 265.)
In In re J.W., the child had multiple disabilities. He screamed, ran away, hit and kicked people, threw objects and was defiant; he underwent 12 placements in three years. Eventually, a family wished to adopt him because his behavior markedly changed for the better in their care. (In re J.W., supra, 26 Cal.App.5th at pp. 266-267.) Similarly, two sisters with severe delays and difficult behavior (including aggression, tantrums, and smearing feces) formed a loving relationship with a foster parent, which is evidence of adoptability. (In re Mary C. (2020) 48 Cal.App.5th 793, 802-805.)
Appellants' memories of A.W.'s poor physical and mental condition while in their care do not correlate with his current, greatly improved quality of life. He has not had an emotional outburst or engaged in physical aggression since 2019. He displays age-appropriate behavior, no longer wears diapers or needs intubation, and does not engage in sexual behavior with other children. His teacher reported that he does well in class, is focused, and "does not demonstrate behavior concerns." The court could legitimately conclude that A.W. is generally adoptable in his improved state, thanks to the ministrations of M.R.
DCFS is not required to have "approved" or "available and willing" homes for A.W. to be considered adoptable. (In re A.A. (2008) 167 Cal.App.4th 1292, 1313.) "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.)
c. A.W. Is Specifically Adoptable
If a child is adoptable because a particular caretaker is willing to adopt," 'the analysis shifts from evaluating the characteristics of the child to whether there is any legal impediment to the prospective adoptive parent's adoption and whether he or she is able to meet the needs of the child.'" (In re J.W., supra, 26 Cal.App.5th at pp. 267-268.) A married person may not adopt a child without spousal consent. (Sarah, supra, 22 Cal.App.4th at p. 1650, citing Fam. Code, § 8603; In re G.M. (2010) 181 Cal.App.4th 552, 559-560.)
Father "does not dispute that Mrs. R. was meeting [A.W.'s] needs" but contends that there is a legal impediment to adoption. He argues that M.R. is pursuing adoption as a single applicant, but her husband, Mr. R., had yet to execute and notarize a spousal waiver. He writes that this "glaring omission . . . is a legal impediment to adoption."
The record shows that Mr. R. took classes to qualify as an adoptive parent. Before completing the process, he and M.R. agreed it was best for her to proceed alone with adoption because Mr. R spent increasing time in Mexico. There is no reason to believe he will not sign a spousal waiver.
In September 2022, while this appeal was pending, the juvenile court found DCFS has taken "whatever steps are necessary to finalize the permanent placement of the child," continuing to identify adoption as the permanent plan. The court is presumed to know the law and would not proceed with the plan unless the necessary legal requirements are met.
"The trial court reasonably concluded that [A.W.] is likely to be adopted within a reasonable time by his prospective adoptive parents or some other family. [Citation.]' "[I]t is only common sense that when there is a prospective adoptive home in which the child is already living, and the only indications are that, if matters continue, the child will be adopted into that home, adoptability is established." '" (In re J.W., supra, 26 Cal.App.5th at p. 268.) "Very few children in the dependency system are without problems. To deny [A.W.] the chance to permanently become a member of the family that loves him and that he loves, simply because he has special needs, would derail the entire concept of permanent planning. The evidence shows that the placement is working and that [A.W.] is adoptable." (Id. at pp. 268-269.)
The juvenile court did not err in terminating appellants' parental rights and ordering adoption as the appropriate permanent plan.
DISPOSITION
The order is affirmed.
We concur: CHAVEZ, J. HOFFSTADT, J.