Opinion
F074062
03-22-2017
In re Z.C. et al., Persons Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. WILLIAM C., Defendant and Appellant.
Elaine Forrester, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Brent C. Woodward, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 14CEJ300307-4, 14CEJ300307-5, 14CEJ300307-6, 14CEJ300307-7, 14CEJ300307-8)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Gary L. Green, Commissioner. Elaine Forrester, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Plaintiff and Respondent.
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INTRODUCTION
The juvenile court terminated father William C.'s parental rights to minors Z.C., E.C., and R.C. on July 18, 2016. Father contends the evidence is insufficient to support the juvenile court's finding that these three minors were adoptable and consequently, the order terminating parental rights should be reversed. We disagree and affirm.
In this opinion, certain persons are identified by abbreviated names and/or by status in accordance with our Supreme Court's policy regarding protective nondisclosure. No disrespect is intended.
FACTUAL AND PROCEDURAL SUMMARY
Because father's appeal concerns only Z.C., E.C., and R.C., this summary of the facts will focus on facts that pertain to these three children. The three minors and five siblings and half siblings were detained on October 10, 2014; all the children were 10 years of age and under. A juvenile dependency petition pursuant to Welfare and Institutions Code section 300 was filed on their behalf on October 14, 2014. The petition alleged that Z.C. and E.C. had been handcuffed to the floor, locked in a room, verbally abused, and repeatedly hit with a belt by their legal guardian, their maternal grandmother.
References to code sections are to the Welfare and Institutions Code unless otherwise specified.
A third amended petition was filed on behalf of the eight children on December 23, 2014. As to Z.C. and E.C., the third amended petition alleged that they had suffered serious physical harm that was inflicted intentionally by their maternal grandmother and had endured extreme acts of cruelty; that R.C. was at risk of suffering serious physical harm; that the guardian failed to provide the children with adequate care, protection, and supervision; their mother, Bonnie R., failed to protect the children and her substance abuse placed the children at further risk of serious physical harm or neglect from their maternal grandmother.
Father was incarcerated when his children were detained and placed in foster care. No allegations against father were contained in the third amended petition. On February 5, 2015, father filed a request for an order permitting visits with his children; the request was denied without prejudice. The family court found father had failed to show changed circumstances.
Z.C., E.C., and R.C. had been placed together in October 2014 with a foster family; the foster family was not interested in providing a permanent home for the children. Father was released from prison in March 2015.
At the April 15, 2015, jurisdiction hearing, the family court found all allegations of the third amended petition true; terminated the legal guardianship of the maternal grandmother; and adjudicated the children dependents of the court. Father did not challenge the jurisdiction of the family court, but he did ask for reunification services to be provided to him. Visitation and reunification services were denied mother and the maternal grandparents.
The family court ordered reunification be offered to father and that "therapeutic supervised visits" between father and his children be facilitated. The family court ordered father to participate in parenting classes; substance abuse evaluation and treatment; random drug testing; a mental health evaluation and treatment; and domestic violence treatment. Father was warned that failure to regularly participate in services could result in termination of reunification at the six-month review hearing.
The children began monthly supervised visits with their paternal grandmother, L.E., in February 2015. L.E. withdrew her request for placement of the children in October 2015. A paternal great uncle and great aunt visited the children to determine if they wanted to be considered for placement. A paternal cousin also submitted paperwork to be considered for placement.
Father completed a substance abuse assessment on June 10, 2015. Father was scheduled to begin a 90-day substance abuse treatment program in June 2015, but failed to enter the program. Father was scheduled for 11 therapeutic visits with his children; he attended only three. The visitation referral was closed because father missed four consecutive visits. Father failed to maintain contact with the department's social worker.
In September 2015, father was shot by the paternal grandmother's boyfriend when father attempted to forcibly enter their home. Father was the subject of a section 5150 petition because he was delusional and appeared psychotic. This incident triggered the paternal grandmother's withdrawal of her request for placement of the children. She and her young son were "living in fear" of father and she felt unable to move forward with placement of her grandchildren.
In its review report, the department recommended terminating father's reunification services because he had failed to participate, and also recommended scheduling a section 366.26 hearing.
At a hearing on September 23, 2015, counsel for the minors requested a mental health evaluation of R.C.; mental health evaluations of Z.C. and E.C had previously been ordered. Minors' counsel also wanted further information on the issue of relative placement. The juvenile court found that reasonable services had been provided to father and father's progress was minimal. The juvenile court ordered a section 366.26 hearing scheduled for February 10, 2016, and directed the department to notice father of the hearing.
The court appointed special advocate (CASA) for the children was unable to assess Z.C.'s and E.C.'s progress in mental health counseling. The CASA did express concern about the fact that the counselor for the minors had changed and was not consistent throughout. The CASA described the three minors as generally doing well; Z.C. was repeating kindergarten and "very social"; E.C. was also in kindergarten and did well in reading and math, but struggled with writing; R.C. had been referred for a learning assessment and it was recommended he attend a preschool program.
In November 2015, the paternal grandmother reactivated her application for placement of the three minors. Social workers, however, expressed some reservations about her ability to parent the three children. Two of the children, Z.C. and E.C., had expressed some interest in being placed with other relatives. The CASA recommended the department assess relative placement and any transition to a new family should be introduced slowly.
Father appeared at the section 366.26 hearing on February 10, 2016. Father was incarcerated at that time in the county jail. The juvenile court continued the hearing to May 11, 2016.
The department prepared a report for the May 11 hearing, recommending a continuance to allow relatives to pursue a permanent plan of adoption. The department deemed the children generally adoptable in that they had no behavioral issues, were well mannered, friendly, and sociable. No adoption assessment, however, was provided for Z.C., E.C., or R.C.
The CASA recommended the department continue to assess placement options for the three children and provide additional resources for the children, including following up on the mental health assessments.
At the May 11, 2016, continued hearing, father asked for a continuance to July 18, 2016. Over the objection of the department and counsel for the minors, the juvenile court granted the continuance. The matter was continued to July 18.
Father filed a statement of contested issues, asking that he be provided visitation and reunification services. He also filed a section 388 petition, seeking a change in the juvenile court's orders.
The department filed an addendum report, indicating the three children remained with a foster family that was not interested in adopting them. The paternal grandmother had been given until July 12, 2016, to have her home approved for placement.
At the July 13 settlement conference, the juvenile court denied father's section 388 petition. The juvenile court stated that it understood that the paternal grandmother would adopt E.C. and R.C.; a paternal cousin would adopt Z.C. Minors' counsel advised that the placement was still unresolved, in that the relatives had a few requirements to comply with before the department gave final approval for placement. The department was considering other adoption options, in case relative adoption did not go through.
The department's addendum report for the July 18 continued hearing stated that all three children remained in foster care while the department assessed the impact on the children of having them adopted into two different homes. The department did recommend terminating parental rights and continued assessment of relative placement of all three children.
At the continued section 366.26 hearing on July 18, 2016, father testified and maintained the children would benefit from having a continuing relationship with him. The department argued the minors were generally adoptable, with no significant medical, developmental, or behavioral issues. Counsel for the minors submitted on the reports and agreed with the department's recommendation.
The juvenile court found that the three children, Z.C., E.C., and R.C., likely would be adopted and that adoption was the appropriate permanent plan. The juvenile court thereafter adopted the recommendations of the department; terminated father's parental rights; and ordered adoption as the plan. Minors' counsel expressed concern about their placement and was insistent that the three children be placed together. At the request of minors' counsel, an interim review hearing was set for September 19, 2016.
The juvenile court's order terminating father's parental rights and placing the three children for adoption was filed July 18, 2016. Father filed his appeal on July 19, 2016.
DISCUSSION
Father's appeal challenges only the sufficiency of the evidence supporting the juvenile court's finding that E.C., Z.C., and R.C. were adoptable.
Standard of Review
Termination of parental rights is authorized only if the court finds the children are adoptable. (§ 366.26, subd. (c)(1).) However, "[a]lthough a finding of adoptability must be supported by clear and convincing evidence, it is nevertheless a low threshold: The court must merely determine that it is 'likely' that the child will be adopted within a reasonable time. [Citations.] We review that finding only to determine whether there is evidence, contested or uncontested, from which a reasonable court could reach that conclusion. It is irrelevant that there may be evidence which would support a contrary conclusion." (In re K.B. (2009) 173 Cal.App.4th 1275, 1292 (K.B.); see In re Gregory A. (2005) 126 Cal.App.4th 1554, 1561-1562 ["We give the court's finding of adoptability the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of affirming"].)
Analysis
The procedures for conducting hearings to terminate parental rights are set forth in section 366.26. (§ 366.26, subd. (a).) Subdivision (b) states:
"At the hearing, which shall be held in juvenile court for all children who are dependents of the juvenile court, the court, in order to provide stable, permanent homes for these children, shall review the report as specified in Section 361.5, 366.21, 366.22, or 366.25, shall indicate that the court has read and considered it, shall receive other evidence that the parties may present, and then shall make findings and orders."
Under section 366.26, subdivision (c)(1)(B), "If the court determines, based on the assessment provided as ordered ... and any other relevant evidence, 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 ... unless ... [¶] ... [¶] [t]he court finds a compelling reason for determining that termination would be detrimental" due to one or more of five enumerated circumstances. While it is the child welfare agency's burden to prove a likelihood of adoption (In re Brian P. (2002) 99 Cal.App.4th 616, 623), the burden is on the parent or parents to establish the existence of one of the circumstances that are exceptions to termination. (In re Tamika T. (2002) 97 Cal.App.4th 1114, 1119.)
Those circumstances are: that parents have maintained regular contact with the child and the child would benefit from the parental relationship (§ 366.26, subd. (c)(1)(B)(i)); a child of 12 years or older objects to termination (id., subd. (c)(1)(B)(ii)); the child is in a residential treatment facility, adoption is unlikely or undesirable, and continuation of parental rights will not prevent finding a permanent placement (id., subd. (c)(1)(B)(iii)); the child is living with a relative or foster parent who is unable or unwilling to adopt due to exceptional circumstances but who is able and willing to provide a stable and permanent home, and removal would be detrimental (id., subd. (c)(1)(B)(iv)); and adoption would cause substantial interference with a sibling relationship (id., subd. (c)(1)(B)(v)).
The issue of adoptability turns on whether the child's age, physical condition, and emotional state make it difficult to find the child an adoptive home. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649 (Sarah M.).) "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.'" (Ibid.) Nonetheless, "[u]sually, 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." (Id. at pp. 1649-1650.)
When a child is not considered to be generally adoptable because of his or her age, poor physical health, physical disability, or emotional instability, he or she may be found to be specifically adoptable if a person has been identified who is willing to adopt the child. (Sarah M., supra, 22 Cal.App.4th at p. 1650; In re Brandon T. (2008) 164 Cal.App.4th 1400, 1408 (Brandon T.).) In specific adoptability situations, "'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 Jose C. (2010) 188 Cal.App.4th 147, 158.)
Here, there were prospective adoptive parents, a paternal cousin and the paternal grandmother, who had specifically expressed an interest in adopting one or more of the three children. 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 M., supra, 22 Cal.App.4th at pp. 1649-1650.) Furthermore, the fact that an adoptive home study had not been completed does not preclude a finding that the children are adoptable. (Brandon T., supra, 164 Cal.App.4th at p. 1410.)
Moreover, the children had no significant developmental, physical, or behavioral issues that would create an impediment to adoption. All three children were current on immunizations and no concerns were noted in their physical exam from October 2015. They had good dental health.
Z.C. had demonstrated "tremendous change" and was able to "follow directions, dress himself and communicate his thoughts and feelings without complications." E.C. was able to play "appropriately," "complete small tasks without complications," and "verbalize her wants and needs." R.C. had some speech "difficulty" and needed to be "redirected," but the foster family was working with him on expressing himself appropriately and he appeared to be "coming out of his shell."
In addition, Z.C. was now in first grade and "excelling" in reading and writing; he was "progressing well academically" and was "focused and sociable." There were concerns about R.C.'s speech and motor skills, but he did not meet criteria for any special education services. Z.C. and E.C. were in weekly therapy and "meeting their therapeutic goals."
The evidence before the juvenile court established that the three children did not have poor physical health, a physical disability, or emotional instability, or were of such an age that they would be generally unadoptable. (Brandon T., supra, 164 Cal.App.4th at p. 1408.)
Substantial evidence supports the juvenile court's finding that Z.C., E.C., and R.C. were adoptable. (K.B., supra 173 Cal.App.4th at p. 1292.)
DISPOSITION
The July 18, 2016, order terminating father's parental rights and placing Z.C., E.C., and R.C. for adoption is affirmed.
/s/_________
HILL, P.J. WE CONCUR: /s/_________
LEVY, J. /s/_________
KANE, J.