Opinion
A150671
10-13-2017
In re A.M., a Person Coming Under the Juvenile Court Law. MENDOCINO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. A.F. et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. Nos. SCUKJVSQ 15-17134, 15-17189)
Appellants mother (A.F.) and father (R.M.) and respondent Mendocino County Health and Human Service Agency (the agency) have stipulated to the entry of an order reversing the juvenile court's finding and order terminating appellants' parental rights to their five-year-old son (A.M.). We shall enter the stipulated order.
We are advised by counsel for the agency that counsel for A.M. has been advised of and concurs in the stipulation.
Factual and Procedural Background
On January 26, 2015, the agency filed a petition alleging that A.M. came within the provisions of Welfare and Institutions Code section 300, subdivision (b), based on, among other things, mother and father's history of substance abuse and domestic violence and father's history of mental illness. On February 18, 2015, the above allegations were sustained and A.M. was placed in foster care. Although mother and father were provided reunification services, services were terminated for father following the six-month review hearing and for mother following the 12-month review hearing. A permanency planning hearing under section 366.26 was set for June 2016.
In advance of the hearing, the agency submitted a report indicating that the state adoption specialist had found A.M. to be adoptable. Nonetheless, the adoption specialist recommended that parental rights not be terminated at that time and requested an additional 180 days to assess the paternal grandparents as prospective adoptive parents. The agency concurred in the request. The continuance was granted and the hearing continued to December 2016.
In advance of the continued hearing in December 2016, the agency reported that A.M. was healthy and on track developmentally but continued to have severe behavioral problems. Since starting the school year in September 2016, he had been suspended from his Head Start school for several days and had been moved from two different Head Start programs in an effort to find a good fit. As of November 2, 2016, he was not able to return to his school site as he was a danger to other children and was going to remain at home with his foster mother. He continued to attend weekly therapy to address his anxiety, past trauma, emotional regulation, and his defiant and aggressive behavior. An assessment had been requested but not completed to evaluate whether A.M. had autism.
The agency reported that it was awaiting approval from an adoption expert to place A.M. and his brother with the paternal grandparents. The agency also reported A.M.'s foster family was also considering adoption. While the adoption specialist found A.M. to be adoptable and recommended terminating parental rights, the agency disagreed. The agency argued that it would be better to wait until the adoption assessments of the grandparents and A.M.'s foster family were complete before terminating parental rights. The parents agreed with the agency, but minor's counsel requested that parental rights be terminated. During the course of the hearing, the agency changed its recommendation and requested that parental rights be terminated. The hearing was continued to allow parents time to prepare a response.
In an addendum filed on January 4, 2017, the agency recommended termination of parental rights, noting that it was "fairly certain" that the children would be adopted if parental rights were terminated. The adoption expert again opined that A.M. is adoptable. She acknowledged that he has behavior problems and demanding emotional needs, and that he requires a higher level of supervision than other children his age. Nonetheless, she believed that he is adoptable by a family who can provide him with the structured environment, clear boundaries, and the ability to set limits.
At the conclusion of the hearing, the juvenile court found by clear and convincing evidence that A.M. is likely to be adopted and terminated the parental rights of both parents. Parents timely filed notices of appeal.
At the same hearing, the court made findings and terminated parental rights with respect to their younger son (D.M.). Parents have not challenged these findings and order on appeal.
Mother and father filed opening briefs in June and July 2017, arguing that there is no substantial evidence to support the court's finding under Welfare and Institutions Code section 366.26, subdivision (c)(1) that A.M. is adoptable. The agency did not file a respondent's brief. Instead, on September 27, 2017, the agency, mother, and father filed a joint application and stipulation requesting reversal of the court's jurisdictional findings and orders regarding A.M. The application indicates that "recent developments having occurred since the trial court's orders terminating parental rights, including concerns regarding possible developmental disabilities of minor A.M., has caused the Mendocino County Health and Human Services Agency, Family & Children's Services to reassess its position in regards to this appeal." They request that this court accept the following stipulation: "a. That the record is insufficient to demonstrate that the trial court found minor A.M. generally adoptable on January 18, 2017, when it terminated parental rights, and that further evaluation is necessary due to questions that were present regarding possible developmental disabilities of minor A.M. before the trial court could make a finding regarding the general adoptability of minor A.M. [¶] b. That further assessment should have been completed into both sets of potential adoptive homes for minor A.M. prior to a finding that minor A.M. was specifically adoptable based on those two potential adoptive homes. Based on those facts, the trial court should not have terminated parental rights as to minor A.M. at the Selection and Implementation Hearing held on January 18, 2017. [¶] c. All parties request that this court vacate the findings and orders of January 18, 2017 and remand it back to the trial court for reinstatement of parental rights as to minor A.M. and to set a new Selection and Implementation hearing pursuant to Welfare and Institutions Code Section 366.26. [¶] d. As no other arguments have been raised in this appeal, all other prior orders of the trial court shall remain in effect."
Discussion
The parties' requests are well taken. A finding that a child is adoptable must be based on showing by clear and convincing evidence that the child's age, physical condition, and emotional state will not make it difficult to find a person willing to adopt the child. (In re B.D. (2008) 159 Cal.App.4th 1218, 1231.) Here, the evidence of well-documented, substantial behavioral problems, without more, precludes a finding that A.M. is generally adoptable. Interest expressed by his grandparents and his current foster parents in adopting him is not sufficient to establish his specific adoptability, given the lack of even a preliminary assessment by the state adoption specialist. (Id. at p. 1232 ["When the child is deemed adoptable based solely on a particular family's willingness to adopt the child, the trial court must determine whether there is a legal impediment to adoption."].)
The criteria in Code of Civil Procedure section 128 governing stipulated reversal support granting the application in this case. (See In re Rashad H. (2000) 78 Cal.App.4th 376 [applying section 128 to stipulated reversal in dependency matter].) No injury to nonparties or the public will arise from a stipulated reversal of the findings regarding A.M. A stipulated reversal will advance the public's trust and confidence in the fairness and reliability of dependency proceedings by ensuring that parental rights are not terminated without a sufficient evidentiary showing. And finally, a stipulated reversal in this case poses little risk of discouraging pre-adjudication dispositions and settlements in dependency proceedings involving other families.
Code of Civil Procedure section 128 provides in relevant part, "An appellate court shall not reverse or vacate a duly entered judgment upon an agreement or stipulation of the parties unless the court finds both of the following: [¶] (A) There is no reasonable possibility that the interests of nonparties or the public will be adversely affected by the reversal. [¶] (B) The reasons of the parties for requesting reversal outweigh the erosion of public trust that may result from the nullification of a judgment and the risk that the availability of stipulated reversal will reduce the incentive for pretrial settlement."
Disposition
The order terminating parental rights with respect to A.M. is reversed pursuant to the stipulation of the parties. The remittitur is to issue forthwith. (In re Rashad H., supra, 78 Cal.App.4th at p. 382.)
Pollak, Acting P.J. We concur: Siggins, J.
Jenkins, J.