Opinion
B308478
06-14-2021
In re D.A., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. D.H., Defendant and Appellant.
Carolyn S. Hurley, under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Kimberly Roura, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 17CCJP02724A) APPEAL from findings and order of the Superior Court of Los Angeles County, Stephen Marpet, Judge Pro Tempore. Affirmed. Carolyn S. Hurley, under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Kimberly Roura, Deputy County Counsel, for Plaintiff and Respondent.
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INTRODUCTION
D.H. (Father) appeals the juvenile court's findings and order terminating parental rights over minor child D.A. with a permanent plan of adoption. (Welf. & Inst. Code, § 366.26.) Father contends the court erred as there was a "lack of clear and convincing evidence that the child would be adopted within a reasonable time due to the statements and actions of the relative caregiver indicating she would prefer to provide a guardianship."
Undesignated statutory references are to the Welfare and Institutions Code.
We disagree with Father and affirm. Substantial evidence supports the finding that D.A. was likely to be adopted by the caregiver.
FACTUAL AND PROCEDURAL BACKGROUND
Mother has not appealed the termination of parental rights and finding of adoptability. For that reason, we state only the facts relevant to our assessment of Father's appeal. A. Petition and Detention
On December 26, 2017, the Los Angeles Department of Children and Family Services (DCFS) filed a petition pursuant to section 300, subdivisions (b)(1) and (j), on behalf of D.A., a newborn who screened positive for methamphetamine at birth. The petition alleged Mother had a history of and was a current abuser of methamphetamine, rendering her incapable of regularly caring for and supervising D.A. and placing her at risk of serious physical harm. The petition alleged Mother abused illicit drugs during her pregnancy with D.A and stated D.A.'s four siblings were prior dependents of the juvenile court due to Mother's substance abuse.
After birth, D.A. was not eating well, was small for her gestational age, and was diagnosed with possible osteogenesis imperfecta. Her doctor also found that D.A.'s left leg is curved below the knee. Mother acknowledged her own drug problems and named D.H. as the father of D.A. and D.A.'s four siblings.
Osteogenesis imperfecta is a genetic disorder, commonly referred to as brittle bone disease, where one's bones fracture easily.
During the investigation, DCFS further discovered Mother and Father had previously been the subject of at least two sustained petitions in 2012 and 2016 with respect to D.A.'s siblings.
At the detention hearing on December 27, 2017, the court found a prima facie case for detaining D.A. and ordered her removed from both parents. She was placed in foster care under DCFS supervision. Mother was ordered to test for drugs and alcohol. Mother and Father were each permitted monitored visitation of one hour a week.
A little over a month later, at the February 6, 2018 hearing, the juvenile court ordered DCFS to provide family reunification services to D.A. and both parents. The court continued monitored visitation for both parents. DCFS was ordered to investigate maternal aunt Laura as a possible placement option for D.A.; DCFS was also given discretion to place D.A. with any other appropriate family member. B. Amended Petition, Jurisdiction, Disposition
On February 14, 2018, DCFS filed an amended section 300 petition for then two-month-old D.A. The amended petition added the following allegations: Father "knew or should have reasonably known of the mother's substance abuse and failed to protect the child." Father has "an unresolved history of substance abuse including amphetamine, methamphetamine and marijuana." In December 2014, Father was convicted of possession of a controlled substance and has failed to complete a court-ordered substance abuse rehabilitation problem. Father's "unresolved drug use impairs [his] ability to provide regular care and supervision" and placed the children at risk of serious physical harm.
On April 3, 2018, D.A. was placed under the care and supervision of maternal aunt Laura. During a medical check-up, D.A. was confirmed to have osteogenesis imperfecta. She otherwise had appropriate growth and development.
On April 24, 2018, the court ordered Father to submit to weekly drug testing, which he did not do. DCFS was ordered to further assess the possibility of Father reunifying with D.A.
On June 28, 2018, Laura was Resource Family Approved (RFA) by DCFS. DCFS reported Laura "has been diligently following through with [D.A.'s] medical care and there are no concerns for her ability to do so."
At the jurisdictional and dispositional hearing on July 16, 2018, the court found D.A. a dependent of the court pursuant to section 300, subdivisions (b) and (j), and sustained the amended petition. D.A. was to remain in suitable placement with Laura under DCFS supervision. The court found Laura the holder of educational and developmental rights for D.A. DCFS was ordered to provide both parents reunification services. Father was ordered to submit to random drug testing and to enroll in a parenting program and individual counseling to address case-related issues including child protection. Father was allowed monitored visitation of two hours twice a week. C. The Following Nine Months
After adjudication, Father failed to submit to scheduled drug tests on various dates throughout July, August, and September 2018. Father reported he had not enrolled in parenting classes or individual counseling. As a result of his missed tests, in October 2018, the court ordered Father to enroll in a six-month substance abuse counseling program.
In December 2018, DCFS reported D.A. "is doing well under [Laura's] care as all of the child's needs are met." Laura "makes sure to attend medical appointments and has follow[ed] through with Regional Center." During monthly home visits, DCFS observed Laura appropriately interact with D.A.; D.A. "responds well" to her and "was observed smiling and stretching her arms toward" Laura. Laura inquired about adoption and "continue[d] to be interest[ed] in adopting the child."
At the six-month review hearing on January 14, 2019, the court terminated reunification services as to Mother. DCFS was ordered to complete and finalize the permanent placement of the child. DCFS was further ordered to initiate an adoptive home study.
On January 28, 2019, Laura stated she continued to be interested in adopting D.A. Laura's home was RFA-approved and the home study was considered partially complete.
On February 1, 2019, the court addressed Father: "You completed a parenting class. You're not in individual counseling. You haven't tested through the Department and we're here today with a child under the age of three. The court has an obligation to comply with the statute which says I need to see substantial compliance by you in order for me to give you more time. You haven't done that. You haven't involved yourself in the substance of this case which is some individual therapy and testing through the Department to show me you're clean." The court found there was "meager" and "not substantial" compliance by Father, and terminated services as to Father. DCFS was ordered to complete and finalize the permanent placement of the child and scheduled a hearing to set a permanent plan of adoption for D.A. D. Section 366.26 Permanency Planning Hearings
On May 29, 2019, DCFS updated the court on its adoptive planning. DCFS recommended adoption as the permanent plan for D.A. as "[i]t is in all likelihood that the child will be adopted once parental rights are terminated." Adoption readiness was completed for the family and DCFS reported there were no barriers to adoption. Laura reported having developed "a strong emotional attachment with the child given she has been under her care since shortly after birth"; Laura remained "motivated to adopt the child and provide a safe, loving, and stable home."
On May 31, 2019, the court held a section 366.26 hearing to select and implement a permanent plan for D.A. The court found D.A.'s "placement is appropriate", the home study was approved, DCFS is "in compliance with the case plan", and the "plan is adoption." The court continued the hearing, however, for proper notice to Mother.
On September 10, 2019, DCFS reported D.A. continued to do well under Laura's care. As a result of Laura's efforts with D.A.'s medical and Regional Center appointments, D.A. was able to walk on her own in July 2019. During the home visit, the social worker observed D.A. smiled when Laura baby-talked to her, and D.A. extended her hands toward Laura indicating she wanted to be held by her. Laura reported Father did not have consistent visits with D.A.
On November 20, 2019, DCFS reported Laura "was no longer interested in adoption, and wanted to provide [D.A.] with legal guardianship." Laura ensured D.A.'s needs were met while in her care and remained committed to providing D.A. a permanent home through legal guardianship. Thus, on November 22, 2019, DCFS was ordered to investigate other relatives for placement with a goal of a permanent plan of adoption.
In its March 2020 status review report, DCFS reported D.A. appeared to have "a strong bond" with Laura, as D.A. called Laura "mom" and looked to her for comfort. Laura reported she loves D.A. "as her own child." She said they recently celebrated D.A.'s second birthday, and showed the social worker photos from the birthday party. During the social worker's monthly visits, Laura's home appeared safe and clean, with several age-appropriate toys for D.A. Laura reported D.A. drinks Ensure milk to help strengthen her bones.
For two weeks in March 2020, Laura expressed doubt about adopting D.A. She reported that the social worker had not previously given her an option between adoption and legal guardianship and that she was confused about the difference between the two. On March 11, 2020, Laura told the social worker that after being provided information about both adoption and legal guardianship, she had "reconsidered the child's permanent plan to adoption." On March 16, Laura expressed again that she was unsure of which permanency option to choose; however, on March 24, Laura contacted the social worker and informed her of her decision to adopt D.A.
Due to the spread of COVID-19, the need for social distancing, and the state of emergency declared by Governor Newsom, and pursuant to the March 17, 2020 Administrative Order, the permanency planning hearing was continued.
On April 21, 2020, D.A. underwent surgery when she broke her leg playing on a couch. D.A. was in a cast for nearly two months. She received developmental services via Zoom from the Regional Center and her speech had improved.
On September 30, 2020, D.A.'s doctor told Laura D.A. needed to undergo several treatments for her medical diagnosis. Laura said she would make herself available for every medical visit "as she wants [D.A.] to receive the proper medical care for her diagnosis." Laura repeated again that she wished to adopt D.A. and viewed her as her own daughter. Laura reported Father visited D.A. about twice a month.
DCFS recommended D.A. be adopted by Laura. Laura "demonstrated an ability to meet [D.A.'s] needs. She has been proactive and responsive, providing a safe and secure environment for her to grow and thrive." Laura sought medical care for D.A. when necessary and provided her with "a stimulating active environment." The social worker observed D.A. walking around freely in Laura's home and was always smiling. D.A. "developed a secure and trusting bond" with Laura, and "their relationship appears to be beneficial to [D.A.'s] development and well-being." DCFS reported it received all required adoption readiness documents except references and TB test results. Those were identified as the only impediments to adoption.
During the hearing on October 27, 2020, the court found "by clear and convincing evidence that the child is adoptable" and ordered the matter into adoption. The court found Father had not maintained regular visitation with D.A. and had not established a bond with her. The court found any benefit to the child from her relationship with the parents was outweighed by the benefit the child would receive through the permanency and stability of adoption. The court found adoption was in the best interests of the child and that no exception to adoption applied. The court terminated Mother's and Father's parental rights to D.A. and found "placement is appropriate" with Laura. The court designated Laura as the prospective adoptive parent, as D.A. had lived with Laura for some time, Laura expressed a commitment to adopt and took steps to facilitate the adoption process.
Father timely appealed.
DISCUSSION
A. Applicable Law
"After reunification services have terminated, the focus of a dependency proceeding shifts from family preservation to promoting the best interest of the child including the child's interest in a 'placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child.' " (In re Fernando M. (2006) 138 Cal.App.4th 529, 534.)
At a section 366.26 hearing, if the court determines "by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. The fact that the child is not yet placed in a preadoptive home nor with a relative . . . 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).) Thus, a juvenile court may terminate parental rights only if it determines by clear and convincing evidence that it is likely the child will be adopted within a reasonable time. (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1561.) The "likely to be adopted" standard is a low threshold. (In re J.W. (2018) 26 Cal.App.5th 263, 267; In re K.B. (2009) 173 Cal.App.4th 1275, 1292.)
Whether the child is adoptable focuses on the dependent child, e.g., whether his or her age, physical condition, and emotional state "make it difficult to find a person willing to adopt." (In re A.A. (2008) 167 Cal.App.4th 1292, 1311.) "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." (Id. at p. 1312.) The law does not require a juvenile court to expressly find a dependent child generally or specifically adoptable; all that is required is clear and convincing evidence of the likelihood of the dependent child being adopted within a reasonable time. (Id. at p. 1313.)
"Adoption is the preferred plan and, absent an enumerated exception, the juvenile court is required to select adoption as the permanent plan." (In re Fernando M., supra, 138 Cal.App.4th at p. 534.) Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child's needs, it is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement. (In re N.S. (2020) 55 Cal.App.5th 816, 846.) B. Standard of Review
"When reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court 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 its review, the court must view the record in the light more 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.) The record must contain " 'substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that [the child] was likely to be adopted within a reasonable time. [Citations.]' [Citations.] We give the court's finding of adoptability the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of affirming." (In re Gregory A., supra, 126 Cal.App.4th at pp. 1561-1562.) C. Analysis
Father contends the court erred because Laura was not ready to adopt D.A.; he argues Laura provided conflicting answers about her desire to adopt D.A. and wanted to explore a legal guardianship. Father contends D.A.'s health issues pose an additional barrier to D.A.'s adoptability by Laura. Father also contends DCFS did not provide the juvenile court with evidence that the child was likely to be adopted within a reasonable time because, as of the October 27, 2020 hearing, DCFS had not received the TB test results and references to finally certify Laura as adoption-ready. Father argues we should reverse because there is no substantial evidence of D.A.'s adoptability in this case.
Having reviewed the record as summarized above, we disagree with Father and conclude there was substantial evidence to support the court's finding of adoptability.
This case started in December 2017, soon after D.A.'s birth. D.A. has been in the care and supervision of maternal aunt Laura since April 3, 2018—when D.A. was nearly four months old. By the October 27, 2020 hearing when parental rights were terminated, D.A. (then one month shy of her third birthday) had been in Laura's custody for nearly two-and-a-half years. D.A. is entitled to stability and permanence through adoption, especially after the juvenile court gave Father more than two years to reunify with D.A. "Where a biological parent . . . is incapable of functioning in that role, the child should be given every opportunity to bond with an individual who will assume the role of a parent." (In re Brittany C. (1999) 76 Cal.App.4th 847, 854.)
Father argues that while Laura was "clearly committed" to D.A., "the kind of permanency she was committed to was seriously in question in this case." Father contends the court did not answer the question of "whether this aunt truly wanted adoption or guardianship." Father is mistaken. He heavily concentrates on the short period in late 2019 and early 2020 where Laura expressed confusion about whether to proceed with adoption or legal guardianship and indicated she had opted for legal guardianship. However, despite Father's focus, the record before us is replete with substantial evidence indicating Laura's willingness to adopt D.A. since 2018 and even after expressing some doubt. DCFS reported on December 27, 2018, that Laura inquired about adoption and continued to remain interested in adopting D.A. A month later, on January 28, 2019, Laura stated she continued to be interested in adopting D.A. Later in 2019, Laura reported having developed "a strong emotional attachment with the child given she has been under her care since shortly after birth." Laura said she was "motivated to adopt the child and provide a safe, loving, and stable home." In 2020, Laura reported she loves D.A. "as her own child" and had recently celebrated D.A.'s second birthday with a party. The evidence shows Laura remained willing to adopt and she definitively expressed her willingness by late March 2020, despite some earlier doubt about which was the best option.
Father next raises D.A.'s health issues as another issue affecting D.A.'s adoptability. Despite her genetic disorder of osteogenesis imperfecta, her small size, and her poor appetite, D.A. improved in Laura's care and was "always smiling." As a result of Laura's diligent efforts with D.A.'s medical and Regional Center appointments, D.A. was able to walk on her own in July 2019. It was reported Laura "makes sure to attend medical appointments and has follow[ed] through with Regional Center." One month before the October 27, 2020 hearing, Laura was told by D.A.'s doctor that D.A. "needs to undergo several treatments for her medical diagnosis." Laura said she would make herself available for every medical visit "as she wants [D.A.] to receive the proper medical care for her diagnosis." After being told this diagnosis, Laura again repeated she wanted to adopt D.A. as she viewed her as her own daughter. "[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. (1994) 22 Cal.App.4th 1642, 1650.)
The juvenile court reasonably concluded D.A. was likely to be adopted within a reasonable time by Laura. " '[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 K.B., supra, 173 Cal.App.4th at p. 1293.) Speculation that D.A.'s health issues may cause future problems or difficulties does not preclude a finding that she is likely to be adopted, especially when the evidence shows Laura was adequately and diligently addressing D.A.'s medical needs. (In re Helen W. (2007) 150 Cal.App.4th 71, 79.) Courts have rejected the notion that a child with medical or other problems is necessarily unadoptable. "Very few children in the dependency system are without problems. To deny [D.A.] the chance to permanently become a member of the family that loves [her] and that [she] loves, simply because [she] has special needs, would derail the entire concept of permanent planning." (In re J.W., supra, 26 Cal.App.5th at pp. 268-269.)
Father next claims there were "legal impediments" to Laura's adoption of D.A., precluding the juvenile court from making its October 27, 2020 ruling. "When a child is deemed adoptable only 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 Helen W., supra, 150 Cal.App.4th at p. 80.) Here, Father claims the lack of references, TB test results, and an updated RFA constitute legal impediments to adoption. Father is incorrect.
First, Father provided us with no authority or evidence that disqualifies Laura's fully-approved RFA from June 2018. As of January 2019, Laura's home was also deemed "RFA approved." The record reflects that the section 366.26 hearings were delayed from March 2020 to October 2020 due to COVID-19, which DCFS explains "pushed the hearing past the annual renewal date for Laura's RFA." Similarly, while Father argues the lack of references and TB test results constitute legal impediments to adoption, he fails to provide us with any authority to support his contention. A finding of adoptability requires "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.) As Laura was deemed adoption-ready in the past, nothing in the evidence indicates the lack of TB test results or references would derail Laura's adoption of D.A., or that Laura would not complete those two remaining items in a reasonable time.
There is no legal impediment here.
DISPOSITION
The juvenile court's October 27, 2020 findings and order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J. We concur:
BIGELOW, P. J.
GRIMES, J.