Opinion
B333108
11-01-2024
In re I.S., a Person Coming Under the Juvenile Court Law. v. K.S., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Pete Ferrera, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. 21CCJP00968 Craig S. Barnes, Judge. Affirmed.
Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Pete Ferrera, Principal Deputy County Counsel, for Plaintiff and Respondent.
CURREY, P. J.
INTRODUCTION
K.S. (mother) challenges the order terminating her parental rights to her three-year-old daughter, I.S., under Welfare and Institutions Code section 366.26. Mother contends the order must be reversed because the juvenile court erroneously: (1) conducted the section 366.26 hearing in her absence while she was incarcerated in Georgia; (2) required her counsel to tender an offer of proof in support of his request to set the section 366.26 hearing for contest; and (3) found by clear and convincing evidence that I.S. was adoptable. As discussed below, we conclude her arguments are meritless. Accordingly, we affirm.
All undesignated statutory references are to the Welfare and Institutions Code.
The identity of I.S.'s father is unknown.
We resolve this case by memorandum opinion. (Cal. Stds. Jud. Admin., § 8.1.) The parties are familiar with the facts and procedural history of the case, so we do not fully restate those details here. (People v. Garcia (2002) 97 Cal.App.4th 847, 851, fn omitted [unpublished opinion merely reviewing correctness of juvenile court's decision "does not merit extensive factual or legal statement"].) Instead, we discuss the facts and procedural background only as needed to provide context for and resolve the issues presented in this appeal.
I. The juvenile court's adoptability finding is supported by substantial evidence.
We begin by considering and rejecting mother's challenge to the juvenile court's finding that clear and convincing evidence demonstrated I.S. was adoptable.
"The court may terminate parental rights only if it determines by clear and convincing evidence the minor is likely to be adopted. (§ 366.26, subd. (c)(1).) The statute requires clear and convincing evidence of the likelihood adoption will be realized within a reasonable time." (In re R.C. (2008) 169 Cal.App.4th 486, 491.) "The 'likely to be adopted' standard is a low threshold." (In re J.W. (2018) 26 Cal.App.5th 263, 267.)
The juvenile court may find "it is likely the child will be adopted" within the meaning of section 366.26, subdivision (c)(1) by determining the child is "generally adoptable" or "specifically adoptable." (See Seiser &Kumli, Cal. Juvenile Courts Practice and Procedure (2024) § 2.171; see also In re B.D. (2019) 35 Cal.App.5th 803, 817.) At the section 366.26 hearing, however, the juvenile court is not required to specify whether the child is generally or specifically adoptable. (In re Mary C. (2020) 48 Cal.App.5th 793, 802.) Instead, the court need only "find by clear and convincing evidence that the [child is] 'likely' to be adopted within a reasonable time." (Ibid.)
"A child is 'generally adoptable' when his or her personal characteristics such as age, appearance, and behavior are sufficiently appealing to make it likely that an adoptive family will be located in a reasonable time, regardless of whether a prospective adoptive family has been found." (Seiser &Kumli, Cal. Juvenile Courts Practice and Procedure, supra, § 2.171.) Thus, general 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. [Citations.] Hence, it is not necessary that the minor already be in a potential adoptive home or that there be a proposed adoptive parent 'waiting in the wings.'" (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649, original italics.) "Conversely, the existence of a prospective adoptive parent, who has expressed interest in adopting a dependent child, constitutes evidence that the child's age, physical condition, mental state, and other relevant factors are not likely to dissuade individuals from adopting the child. In other words, 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 A.A. (2008) 167 Cal.App.4th 1292, 1312.) "If the child is considered generally adoptable, we do not [at the time] examine the suitability of the prospective adoptive home." (In re Carl R. (2005) 128 Cal.App.4th 1051, 1061.)
"[I]n 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." (In re Sarah M., supra, 22 Cal.App.4th at p. 1650.) "Where the social worker or adoption worker opines the child is likely to be adopted based solely on the existence of a prospective adoptive parent who is willing to adopt the child, the child is said to be 'specifically adoptable.'" (Seiser &Kumli, Cal. Juvenile Courts Practice and Procedure, supra, § 2.171.) In cases involving specific adoptability, "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 Helen W. (2007) 150 Cal.App.4th 71, 80.)
We review the juvenile court's adoptability finding for substantial evidence. (In re Josue G. (2003) 106 Cal.App.4th 725, 732.) Where, as here, we must review "a finding that a fact has been proved by clear and convincing evidence, the question . . . is whether 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. In conducting [our] review, [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 (O.B.).)
In finding I.S. was adoptable by clear and convincing evidence, the juvenile court did not specify whether I.S. was generally or specifically adoptable. According to mother, however, the record demonstrates the court implicitly found I.S. to be specifically adoptable because its "adoptability finding was based on the intention of [foster mother M.K. and M.K.'s mother, M.C.,] to jointly adopt I.S....." Mother argues the adoptability finding, therefore, is unsupported by substantial evidence because the Department of Children and Family Services (Department) did not assess M.C.'s suitability to co-adopt I.S. with M.K.
We are unpersuaded by mother's argument. Although the juvenile court designated M.K. and M.C. as I.S.'s prospective adoptive parents at the section 366.26 hearing, it did not make any comments demonstrating it "deemed [I.S.] adoptable only because [M.K. and M.C. were] willing to adopt" her. (In re Helen W., supra, 150 Cal.App.4th at p. 80.) Similarly, the evidence does not demonstrate I.S. was "unadoptable due to age, poor physical health, physical disability, or emotional instability" (In re Sarah M., supra, 22 Cal.App.4th at p. 1650), such that the juvenile court must have relied on a theory of specific adoptability to terminate mother's parental rights under section 366.26, subdivision (c)(1). By contrast, as set forth below, "the record as a whole contains substantial evidence from which [the juvenile court] could have found it highly probable that" I.S. was generally adoptable. (O.B., supra, 9 Cal.5th at p. 1011.)
At the time of the section 366.26 hearing held in November 2023, I.S. was two years old and in good physical health. She was not a client of the Regional Center, as she has consistently met all age-appropriate developmental milestones, including those relating to her motor and communication skills. I.S. also played well with other children and was appropriately bonded to M.K. -her foster mother and prospective adoptive parent with whom she has lived since she was a few days old - as well as M.K.'s son, sister, and mother. M.K. has repeatedly expressed willingness to adopt I.S.
With respect to I.S.'s mental health, in the spring of 2022, M.K. expressed concern to the Department because I.S. was throwing tantrums and hitting her head on the walls and floor when angry. Subsequently, after contacting M.K. per the Department's request, the Regional Center determined I.S.'s behaviors were the product of "age appropriate rebellion" rather than issues relating to her development or mental/emotional health. By the end of January 2023, I.S.'s behaviors had resolved, and M.K. reported I.S. was no longer engaging in any concerning behaviors. I.S. has not required mental health services at any time during her dependency case.
In sum, the record unequivocally shows that at the time of the section 366.26 hearing, I.S. was young, in good physical and mental/emotional health, exhibiting age-appropriate intellectual growth, and able to develop interpersonal relationships with others. It also demonstrates M.K. has expressed willingness to adopt I.S. Under these circumstances, we conclude "the record as a whole contains substantial evidence from which [the juvenile court] could have found it highly probable" (O.B., supra, 9 Cal.5th at p. 1011) that I.S. was generally adoptable because her "age, physical condition, and emotional state" would not "make it difficult to find a person willing to adopt [her]." (In re A.A., supra, 167 Cal.App.4th at p. 1311; In re Gregory A. (2005) 126 Cal.App.4th 1554, 1562 [noting "[a] child's young age, good physical and emotional health, intellectual growth and ability to develop interpersonal relationships," along with a prospective adoptive parent's expressed interest in adopting the child, demonstrate the child is generally adoptable].)
Because the record contains substantial evidence demonstrating I.S. is generally adoptable, we reject mother's challenge to the juvenile court's adoptability finding, as it is based on legal principles applicable only to cases involving specific adoptability. The crux of her argument is the Department failed to assess whether M.C. was suitable as a prospective adoptive parent. Where, as here, however, the record reflects a child is generally adoptable, "the suitability of the prospective adoptive family does not constitute a legal impediment to adoption and is irrelevant to the issue of whether a child is likely to be adopted." (In re Carl R., supra, 128 Cal.App.4th at p. 1061.) Only in cases of specific adoptability does "the analysis shift[ ] 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 Helen W., supra, 150 Cal.App.4th at p. 80.) Accordingly, In re Valerie W. (2008) 162 Cal.App.4th 1, the case on which mother's argument is based, does not apply here because it is concerned with specific rather than general adoptability. (See id. at pp. 7, 10, 14-16.)
Thus, mother has not shown the juvenile court's adoptability finding must be reversed, and we decline to do so.
II. The juvenile court did not commit reversible error by holding the section 366.26 hearing in mother's absence while she was incarcerated in Georgia.
Mother has been incarcerated in Georgia since at least August 2023. At a hearing held that month, where mother appeared telephonically, the juvenile court authorized her to appear virtually for the section 366.26 hearing set for November 2023. The court also authorized mother's counsel to communicate with the litigation coordinator at her place of incarceration to facilitate her virtual appearance at the section 366.26 hearing, and directed the Department to assist mother's counsel with his efforts on this matter.
For reasons unspecified on the record, and despite her counsel's extensive communication with her incarceration facility, mother did not call into the November 2023 hearing. At the hearing, mother was still represented by counsel who requested a 90-day continuance. The juvenile court denied the request and held the section 366.26 hearing in her absence.
Mother contends the juvenile court deprived her of due process by holding the section 366.26 hearing without her participation and, therefore, committed reversible error. We are unpersuaded. Assuming, arguendo, mother was entitled to appear virtually at the section 366.26 hearing, we discern no prejudice stemming from her absence. (See In re Jesusa V. (2004) 32 Cal.4th 588, 625-626 [applying harmless-error analysis to determine whether reversal is required based on incarcerated parent's involuntary absence at a hearing]; see also Cal. Const., art. VI, § 13 ["No judgment shall be set aside . . . in any cause . . . for any error as to any matter of procedure, unless, after examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice"].)
Although not entirely clear, mother appears to contend she was prejudiced because, as a result of the Department's failure to secure her appearance, she was deprived of the opportunity to object to the Department's recent recognition of M.C. as a potential adoptive parent at M.K.'s request, even though M.C. had not been "cleared" to co-adopt I.S. with M.K. In her appellate briefs, however, mother does not specify the testimony or evidence she would have presented in support of her objection had she participated in the hearing. Moreover, whether M.C. was "cleared" or qualified to co-adopt I.S. was irrelevant to I.S.'s adoptability, the key issue before the juvenile court at the section 366.26 hearing. (See § 366.26, subds. (b)(1) &(c)(1).) As discussed above, where, as here, the evidence shows a child is generally adoptable, "the suitability of the prospective adoptive family does not constitute a legal impediment to adoption and is irrelevant to the issue of whether a child is likely to be adopted." (In re Carl R., supra, 128 Cal.App.4th at p. 1061.) Consequently, we are unconvinced reversal is required, as "one can say with confidence that '[n]o other result was possible' even if [mother] had been present" at the hearing. (In re Jesusa V., supra, 32 Cal.4th at p. 626.)
III. The juvenile court did not err by asking mother's counsel for an offer of proof in support of his request to set the section 366.26 hearing for contest.
Finally, mother contends the juvenile court erred by asking her counsel to tender an offer of proof in support of his request to set the section 366.26 hearing for contest. She asserts her counsel sought to set the matter for contest to dispute I.S.'s adoptability, an issue on which the Department - not she - bore the burden of proof. Therefore, she argues, reversal is required because: "It is well-established that it is a violation of due process to require a parent to make an offer of proof before holding a contested [section 366.26] hearing on an issue [on] which the parent does not have the burden of proof." Again, we are not persuaded by mother's argument.
As mother correctly observes, an offer of proof would not have been required had her counsel requested a contested section 366.26 hearing to test the Department's evidence underlying its recommendation that I.S. be found adoptable. (See In re Thomas R. (2006) 145 Cal.App.4th 726, 732 [an offer of proof is not required where a parent requests a contested section 366.26 hearing "to explore the strength of the agency's evidence that the child is likely to be adopted"]; see also M.T. v Superior Court (2009) 178 Cal.App.4th 1170, 1180 ["'A party cannot be required to make an offer of proof for a contested hearing if what the party wants to contest is a finding or issue on which a different party, such as the social services agency, has the burden of proof'"].) Counsel's remarks at the hearing, however, do not reflect he sought to set the matter for contest for that purpose.
In objecting to the Department's recommendation for termination of mother's parental rights at the section 366.26 hearing, mother's counsel raised two points. First, he argued termination of parental rights was premature, as the Department had yet to assess M.C.'s qualifications to co-adopt I.S. with M.K. Counsel then expressed concern that the Department may have improperly delegated to him its responsibility to ensure mother had visitation with I.S. while incarcerated in Georgia. Neither of these arguments, nor any other comments made by mother's counsel at the hearing, establish he sought to challenge the Department's evidence showing I.S. was generally adoptable based on her physical health, development, and mental/emotional condition.
Consequently, the record does not demonstrate mother sought a contested hearing to dispute whether the Department had met its burden of proving I.S.'s adoptability, as she now contends. Instead, it shows that, before asking to set the section 366.26 hearing for contest, counsel raised arguments irrelevant to that central issue. (See In re Carl R., supra, 128 Cal.App.4th at p. 1061; see also § 366.26, subds. (b)(1) &(c)(1).) Accordingly, because "due process does not permit a parent to introduce irrelevant evidence," the juvenile court appropriately responded to counsel's request by asking him to tender an offer of proof. (In re Tamika T. (2002) 97 Cal.App.4th 1114, 1122.) By doing so, the court properly sought to "clearly identify the contested issue(s)" and "determine whether [mother's] representation [was] sufficient to warrant a hearing involving presentation of evidence and confrontation and cross-examination of witnesses." (Ibid.)
DISPOSITION
The order terminating parental rights is affirmed.
We concur: MORI, J., ZUKIN, J.