Opinion
B301662
03-18-2020
In re I.C., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. MARCY S., Defendant and Appellant.
Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Stephen D. Watson, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. DK19470) APPEAL from an order of the Superior Court of Los Angeles County, Daniel Zeke Zeidler, Judge. Affirmed. Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Stephen D. Watson, Deputy County Counsel, for Plaintiff and Respondent.
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In September 2016, the Los Angeles County Department of Children and Family Services (DCFS) filed a Welfare and Institutions Code section 300 petition seeking juvenile court jurisdiction over I.C., who was then two years old. The juvenile court later sustained the petition, finding mother's history of mental illness rendered her incapable of caring for I.C. I.C.'s father's whereabouts were unknown, and he never participated in the dependency proceedings. Mother, who had severe mental illness and a criminal history including prostitution, did not reunify with I.C.
Undesignated statutory citations are to the Welfare and Institutions Code.
At the section 366.26 hearing, the juvenile court concluded that I.C. was adoptable and terminated mother's parental rights. On appeal, mother argues that the juvenile court erred in concluding that I.C. was adoptable. Mother's argument lacks merit. I.C.'s prospective adoptive parents were committed to adopting her and, at the time the court found I.C. adoptable, there were no impediments to her adoption. The juvenile court's determination that I.C. was adoptable was supported by substantial evidence. We affirm the juvenile court's order terminating mother's parental rights.
BACKGROUND
We summarize only the background relevant to the sole issue on appeal—whether I.C. was adoptable.
I.C. was born in April 2014. Later, I.C. was diagnosed with Autism Spectrum Disorder. She required assistance bathing, brushing her teeth, and getting dressed. I.C. had a speech delay. She received special education services at her school.
In June 2017 (less than a year after DCFS filed the section 300 petition), DCFS reported that I.C. was in five foster care placements. The placements changed because of I.C.'s behavior including "smearing feces, several daily tantrums, screaming, running into busy streets, hitting and biting others, throwing objects, and eating non food objects." Also, mother threatened one of the caregivers. In November 2017, DCFS reported that I.C. was placed in another foster family because her prior foster parents "fell ill and could no longer provide care. . . ."
A November 2017 report from the Regional Center indicated that I.C. "was reported to be disruptive and will tantrum at least once a month." I.C. was not able to communicate her needs. Less frequently, I.C. would become aggressive when she became upset.
1. DCFS's August 2018 Report in Advance of the Hearing to Determine I.C.'s Permanent Plan
As noted, mother failed to reunify with I.C. In advance of the section 366.26 hearing to determine I.C.'s permanent plan, DCFS reported that foster parent Ms. M. was interested in adopting I.C. Ultimately, DCFS removed I.C. from Ms. M.'s home because another child in the home disclosed that he had been sexually and physically abused. A social worker investigated and learned that I.C. engaged in sexualized behaviors. DCFS reported that a forensic evaluator was unable to determine whether I.C. had been sexually abused. I.C. was placed in Ms. W.'s care who later requested that she be removed.
2. DCFS's June 13, 2019 Status Review Report
DCFS reported that in January 2019, I.C. was placed in the home of Shelly and Eugene A., her preadoptive parents. The A.'s reported that I.C. "has displayed challenging behaviors that have included but are not limited to yelling, screaming, hitting the other children in the home, gyrating . . . , and not following directions in the home." At school, I.C. was physically aggressive and lacked social skills. I.C. tried to throw chairs at other students in her class.
According to a social worker, the A.'s ensured I.C. received necessary services. The social worker reported that I.C. was thriving in the A.'s home and the A.'s were interested in adopting her. DCFS reported that Shelly and Eugene are "attentive to [I.C.'s] needs and [en]sure that her needs are continually met."
In April 2019, I.C. reported that an unidentified person "whipped" her. I.C. would not "clarify" who hit her. DCFS ultimately found the allegation that an unidentified person hit I.C. "[i]nconclusive." DCFS investigated an additional allegation that foster mother Shelly neglected I.C., and DCFS concluded that the allegation was unfounded.
3. DCFS's May 2019 Report in Advance of the New Hearing to Determine I.C.'s Permanent Plan
DCFS reported that the A.'s have had foster children "on and off " since February 2008. Shelly had an arrest for corporal injury on a spouse, but the case was dismissed without conviction. In approximately 2001, Eugene had a prior substantiated finding of child abuse based on "a history of severe physical discipline." DCFS reported that the social worker would update the A.'s homestudy to address Eugene's substantiated finding of child abuse. According to the DCFS social worker, "Prior to any approval the family will need to have the child abuse investigations completed and show no risk to the children in the home." Additionally, DCFS reported that in 1988 or 1989, Eugene was convicted of selling a controlled substance.
DCFS again reported that the A.'s were attentive to I.C.'s needs. DCFS stated although the A.'s initially wavered on whether they wanted to adopt I.C., they had committed to adoption. I.C. stated that she "likes" living with the A.'s.
The juvenile court continued the section 366.26 hearing because the A.'s homestudy was not complete.
4. Additional DCFS Reports Concerning I.C.'s Permanent Plan
A social worker interviewed I.C. I.C. told the social worker that Eugene disciplined her by sending her to her room. Shelly would tell I.C. to read books when I.C. misbehaved. When asked if the A.'s hit I.C., I.C. responded negatively. I.C. said she was not afraid of the A.'s but that she did not " 'love them.' " The other children in the home denied any abuse by the A.'s. DCFS reported that "there were no findings made indicative of current abuse or neglect towards the four children in the" A.'s home.
The A.'s homestudy was updated and approved in September 2019. DCFS again reported that the A.'s were committed to adopting I.C. Although the number of children in the A.'s home was initially described as an impediment to adoption, as of September 2019, the A.'s no longer had too many children living in their home. DCFS reported that "[t]here are no impediments to adoption."
5. Section 366.26 Hearing
Mother was unable to leave Florida because of a hurricane, and the juvenile court continued the section 366.26 hearing so that mother could be present. At the continued hearing on September 11, 2019, mother did not appear. Mother's counsel argued that I.C. was not adoptable. I.C.'s counsel requested the court terminate mother's parental rights. The juvenile court asked about whether the foster parents had too many children in their home. Counsel for I.C. responded that foster parents only had two children and were no longer over their limit. Mother's counsel offered no retort.
The juvenile court found that I.C. was adoptable by clear and convincing evidence. The juvenile court explained that the foster parents' prior history was investigated and the allegation against Shelly was unfounded. The court further found that I.C. had a "bond" with the A.'s. The court terminated mother's parental rights. At that time, I.C. was about 5 years old and had been in seven foster care placements and a group home during the September 2016 to January 2019 time period. Mother timely appealed.
DISCUSSION
Mother argues that there was insufficient evidence to support the juvenile court's finding that I.C. was adoptable. According to mother, I.C. was not generally adoptable because she suffered from autism and behavioral issues. Mother further argues that I.C. was not specifically adoptable because there were legal impediments to the A.'s adopting I.C. We review the juvenile court's determination for substantial evidence. (In re R.C. (2008) 169 Cal.App.4th 486, 491.) "The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order." (Ibid.) We conclude that I.C. was specifically adoptable, meaning that there was substantial evidence the A.'s would adopt I.C. within a reasonable time.
Section 366.26, subdivision (c)(1) provides in pertinent part: "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 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." The court may designate a current caregiver as a prospective adoptive parent if the child has lived with the caretaker for at least six months, the caretaker currently expresses a commitment to adopt the child, and the caretaker has taken at least one step to facilitate the adoption process. (Id., subd. (n)(1).)
The issue of adoptability posed in a section 366.26 hearing focuses on the characteristics of the child. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) Such characteristics include age, physical condition, and mental state. (In re R.C., supra, 169 Cal.App.4th at p. 491.) "Because the issue focuses on the child, adoptability generally falls into two categories: General adoptability, and specific adoptability. [Citation.] The existence of a committed prospective adoptive parent is relevant, but is not determinative. [Citations.] A child who is happy, healthy and young, with no discernable developmental problems, can be found to be generally adoptable even if no prospective adoptive family is ' "waiting in the wings," ' ready to adopt. [Citations.] For a specifically adoptable child, on the other hand, the court's inquiry is different. The court must determine whether there are any legal impediments to adoption and whether there is a prospective adoptive parent who is able to meet the needs of the child." (In re B.D. (2019) 35 Cal.App.5th 803, 817.)
Substantial evidence supported the conclusion that I.C. was specifically adoptable, i.e., that Shelly and Eugene would adopt I.C. within a reasonable time. At the time of the selection and implementation hearing, the A.'s were aware of I.C.'s special needs and nevertheless expressed a commitment to adopting her. DCFS reported that I.C. was thriving in their care. Further she "like[d]" living with them even though she stated that she did not "love" them.
"[E]vidence of a legal impediment to adoption under the Family Code by an identified prospective adoptive parent is relevant when a social worker's opinion that a dependent child will be adopted is based in part on the willingness or commitment of an identified prospective adoptive parent." (In re G.M. (2010) 181 Cal.App.4th 552, 562.) Mother argues that there were legal impediments to the A.'s adoption but identifies no such impediments at the time of the section 366 .26 hearing when the juvenile court found I.C. adoptable. Prior to the selection and implementation hearing, DCFS investigated I.C.'s claim that "they whipped me." I.C. never identified the A.'s as the perpetrators and she specifically stated that she was not afraid of them. The juvenile court continued the selection and implementation hearing to afford DCFS the opportunity to investigate concerns about Eugene's criminal background, as well as concerns of the number of children in their home. As we have described above, the impediments mother identifies had been resolved before the juvenile court concluded that the A.'s were likely to adopt I.C. Mother demonstrates no legal impediments to the A.'s adoption at the relevant time and the record shows that they were committed to adopting I.C.
DISPOSITION
The order terminating mother's parental rights is affirmed.
NOT TO BE PUBLISHED.
BENDIX, J. We concur:
ROTHSCHILD, P. J.
CHANEY, J.