Opinion
E067407
05-19-2017
In re L.C. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. C.C., Defendant and Appellant.
Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Danielle E. Wuchenich, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. J259814 & J259815) OPINION APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes, Judge. Affirmed. Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Danielle E. Wuchenich, Deputy County Counsel, for Plaintiff and Respondent.
C.C. (father) appeals an order terminating his parental rights and finding his daughter and her younger half sister (who is not his daughter) likely to be adopted. He argues the adoptability finding must be reversed because the record contains insufficient evidence about his daughter's medical condition (Marfan syndrome) and whether the prospective adoptive parents were able to meet her unique needs. We conclude substantial evidence supports the adoptability finding, and affirm.
I
FACTUAL BACKGROUND
A. Jurisdiction and Disposition
In April 2015, San Bernardino County Children and Family Services (CFS) filed a Welfare and Institutions Code section 300 petition on behalf of newborn L.C. and her two-year-old sister, C.C. The petition listed father as an alleged father and asserted the girls fell under section 300, subdivision (b) based on mother's and father's substance abuse issues and extensive criminal records. The petition also asserted mother suffered from mental health issues and had failed to reunify with two of her children in two prior dependencies.
Unlabeled statutory citations refer to the Welfare and Institutions Code.
Mother tested positive for cocaine and marijuana while she was delivering L.C. The social worker visited her in the hospital after she gave birth and interviewed her and father. Mother admitted she had used cocaine the week before, but claimed it was an accident because she did not realize the cigarette she was smoking had been laced with cocaine. Father told the social worker he had been with mother since 2011 but did not know much about her drug use. He said he smokes marijuana three to four times a day because he is legally blind and has pain in his right eye. He did not have a current medical marijuana card, but he had one in the past. Mother and father said they were open to participating in a team decision making meeting.
Mother told the social worker she had another daughter, C.C., who was currently living with the paternal grandmother in Victorville. After getting written authorization from mother, CFS placed L.C. and C.C. in a foster home.
Father did not attend the team decision making meeting or the detention hearing. At the detention hearing, mother informed the court she did not know where father lived or where he was, but she believed he resided within the county. Father's whereabouts were still unknown by the time of the jurisdiction/disposition report. CFS recommended the court remove the girls from mother and father and provide reunification services to mother, but not father because he was only an alleged father and had not made any efforts to participate in the case. The girls were doing well in their foster home. The foster parents were meeting the girls' needs and did not report any concerns.
During an interview, mother told the social worker she and father had lived together with the paternal grandmother for about two and a half years. Although they had separated shortly after C.C.'s birth, she claimed father was also the biological father of newborn L.C. She said he had not been involved much in their lives and had provided minimal financial support.
The social worker continued trying to locate father. Record searches revealed he was 21 years old, had been convicted of active gang participation in 2013, and had suffered seven other criminal charges between 2012 and 2015, five of which were for parole violation. Mother reported she had spoken with father on the phone since L.C.'s birth and had told him to call the social worker about the case. By the time of the jurisdiction/disposition report, father "ha[d] not contacted [the social worker] to inquire as to any reunification services, visitation with his children, or even regarding the welfare of his children."
Leading up to the jurisdiction and disposition hearing, CFS filed a concurrent planning/adoption assessment report, changing its recommendation to no services for mother, and concluding the girls were likely to be adopted. Mother had missed two visits with the girls and had been terminated from her mental health program for failure to show.
Neither mother nor father attended the jurisdiction and disposition hearing, and father's whereabouts were still unknown. CFS informed the court that the relative assessment unit was assessing father's grandmother, the paternal great-grandmother, for placement. The court sustained the allegations in the petitions, found father to be an alleged father, denied services to both parents, and set a section 366.26 selection and implementation hearing. Father did not file a petition for extraordinary writ.
At a hearing on July 13, 2015, CFS informed the court it had located father in jail in San Bernardino County. Two days later, the court had father transported from custody and held a hearing to appoint him counsel and inform him of the upcoming section 366.26 hearing. Father asked if there was any update on his grandmother's placement assessment. CFS responded it had no additional information and told father his grandmother should contact CFS.
B. Adoptability Finding and Termination of Parental Rights
In its section 366.26 report filed in September 2015, CFS requested a continuance to locate a prospective adoptive home for the girls. CFS concluded there was a "good" likelihood they would be adopted because of their young ages and strong bond with each other. The girls did not show a strong bond with mother due to their young age and the parents' failure to visit. The girls were still living in their foster home and doing well. They had "moderate" emotional or behavioral issues and were not yet of school age. C.C. was receiving therapeutic and developmental services from SART (Screening, Assessment, Referral and Treatment) providers as a preventative measure. According to their recent medical and dental exams, the girls were physically healthy. C.C. had been referred to an ophthalmologist for glasses.
C.C.'s Health and Education Passport (HEP) from September 2015, indicated she might have Marfan syndrome, which is an inherited disorder of connective tissue that most commonly affects the heart, eyes, blood vessels, and skeleton. People with Marfan syndrome are usually tall and thin with disproportionately long arms, legs, fingers, and toes. The damage caused by the syndrome can be mild or severe, and treatment usually includes medications to keep blood pressure low to reduce the strain on the aorta. According to the HEP, however, C.C. showed no hypersensitivity, joint defects, or other symptoms of the syndrome. The results of her electrocardiogram showed her "ventricle/valve and aortic vessels" were "all normal."
Mayo Foundation for Medical Education and Research (2017) Marfan syndrome Overview, <http://www.mayoclinic.org/diseases-conditions/marfan-syndrome/home/ovc-20195407> [as of May 18, 2017].
C.C.'s HEP noted she had two seizures when she was one year old and had been hospitalized for a week as a result. However, her most recent electroencephalogram was normal and showed no signs of seizure. Her physician believed hypoglycemia was the probable cause of the seizures.
Father was incarcerated at the time of the section 366.26 hearing in September 2015, but his counsel was present. Counsel did not object to CFS's conclusion the girls were likely to be adopted, but she asked the court to order paternity testing so father's relatives could be assessed for placement if he turned out to be the biological father. The court ordered testing, but remarked that father should have asked for testing at his first court appearance if he wanted to be declared the biological or presumed father.
At a hearing in January 2016, CFS informed the court father had not taken a paternity test even though he had been released from custody since November 2015 and had all the necessary information to get tested. Father's counsel informed the court father was back in custody for a parole violation and would take a paternity test. The court stated, "Well, he is in custody. He will be easy to find now," and reissued the order for a paternity test.
Counsel for the girls recommended setting a contested hearing to terminate parental rights and select adoption as the permanent plan. She acknowledged the girls had "minor medical problems," but believed they were nevertheless generally adoptable because they were young and part of a sibling set. CFS reported that the girls' foster family wanted to "keep the children long-term in a guardianship." However, CFS agreed adoption should be the girls' permanent plan, based on the girls' ages and the likelihood a family would want to adopt them. CFS emphasized the importance of a paternity test because it was considering father's grandmother as an option for adoptive placement.
In its July 2016 status review report, CFS updated the court on its placement efforts. Although the relative assessment unit had approved the paternal great-grandmother, CFS had concluded she was not appropriate for placement because she had failed to maintain contact and missed several visits with the girls. A maternal great-aunt and uncle were interested in adopting the girls, however. The couple had adopted one of mother's other daughters and had recently moved from Tennessee to California to be considered for adoption and to foster a relationship between the girls and their half sister, their adopted daughter. The assessment would take place once the family found appropriate housing, but the family had already initiated visits two times a week. C.C. was adjusting well during the visits, "given there is a half-sibling around her age," but L.C. was showing "some difficulty in adjusting" because she had developed a strong bond with her foster parents.
C.C.'s most recent HEP (from July 2016) indicated she had been diagnosed with Marfan syndrome and was under the care of a general physician and a pediatric cardiologist at Loma Linda University Medical Center to monitor her condition. The results of her most recent electrocardiogram and electroencephalogram continued to be normal and she still exhibited no symptoms of the syndrome. She was scheduled to start taking 5 milligrams a day of Cozaar (losartan potassium tablets), a blood pressure medication, beginning July 31, 2015. (Thomson, Physician's Desk Reference (61st ed. 2007) p. 1935.)
C.C. had been enrolled in a preschool program that started in August 2016. She was receiving therapy services through Victor Community Support Services to address "moderate" developmental delays and was making "appropriate progress." C.C.'s HEP noted she had a speech delay and recommended discussing an Individualized Education Plan (IEP) with her school district. The report stated the girls "do not present with considerable emotional or behavioral issues" and noted SART providers would continue to administer services solely as a preventative measure. The girls continued to live with their foster family who was "provid[ing] a safe and nurturing environment" and meeting their needs "on a consistent basis."
Father's whereabouts were still unknown. He had not contacted the girls over the past six months or attempted to arrange any visits. The results of a February 2016 paternity test showed he was the biological father of C.C., but not of L.C.
On the day of the November 2016 section 366.26 hearing, CFS filed a document informing the court the relative approval unit had approved the maternal aunt and uncle's home for placement. Visits with the prospective adoptive family were going well, "showing potential for a positive placement to occur." CFS concluded: "Now that the [prospective adoptive] home is now approved . . . the plan of adoption with the [prospective adoptive] family is now the appropriate plan and can move forward at today's hearing."
Mother and father were not present at the hearing. Their counsel argued that the girls were not adoptable because they had not yet been placed in the prospective adoptive family's home. The girls' counsel argued they were adoptable and placement with a prospective adoptive family was not a prerequisite to terminating parental rights. She stated, "The Court has to find that the kids are adoptable, and [C.C.] is [diagnosed] with Marfan Syndrome, but she is under the care of a doctor and goes to a cardiologist every six months, and there are no other behavioral concerns, so I think the Court can find the children are generally adoptable."
Before making its adoptability finding, the court asked for more information on Marfan syndrome, stating "I just don't know what [it] is." The girls' counsel described it as a medical condition affecting the heart. The social worker added the syndrome was "very rare." She said Abraham Lincoln reportedly suffered from it and noted father did too and, as a result, was "very tall." At this point, the court stopped the discussion and said it was familiar with the syndrome and did not see how C.C.'s diagnosis rendered the girls unadoptable, "even generally."
The court found by clear and convincing evidence the girls were generally adoptable, terminated parental rights, and selected adoption as the permanent plan. The court terminated father's rights to C.C. and terminated the "unknown father['s]" rights to L.C. because father was not her biological father.
II
DISCUSSION
A. Father Lacks Standing to Challenge L.C.'s Adoptability Finding
Father contends there was insufficient evidence to support the juvenile court's determination the girls were generally adoptable. Because the paternity test revealed father is not L.C.'s biological father, he lacks standing to challenge her adoptability finding. (In re Joseph G. (2000) 83 Cal.App.4th 712, 715-716.)
Father argues we should treat him as a presumed father despite the lack of a formal juvenile court finding to that effect. We decline the invitation. Father showed almost no interest in this case and failed to take any of the actions required for presumed father status.
In dependency proceedings, "fathers" are divided into four categories—biological, presumed, alleged, and de facto. (In re J.O. (2009) 178 Cal.App.4th 139, 146.) As relevant here, "[a] biological father is one whose paternity is established, but who does not qualify as a presumed father. [Citation.] An alleged father is a man who may be the father, but has not yet established himself as either a biological father or a presumed father." (Id. at pp. 146-147.) "The distinction is important because only a presumed father is entitled to custody or a reunification plan. [Citation.] An alleged father is not entitled even to appointed counsel, except for the purpose of establishing presumed fatherhood. [Citation.] Indeed, it is generally said that an alleged father's rights are limited to 'an opportunity to appear and assert a position and attempt to change his paternity status.'" (Id. at p. 147.)
Here, while father started out as an alleged father, he lost any type of father status after the paternity test established he was not L.C.'s biological father and he failed to seek presumed father status through conduct or request. The Family Code sets out various methods of establishing a presumption of paternity, and father argues he satisfied the one that presumes fatherhood where the man "receives the child into his home and openly holds out the child as his natural child." (Fam. Code, § 7611, subd. (d).) The record, however, shows nothing of the sort. L.C. was detained at birth, so father never had the opportunity to offer to bring her into his home, but his actions after detention indicate he showed little to no interest in the case or L.C.'s welfare. He disappeared immediately after the social worker interviewed him at the hospital and never once reached out to CPS to establish paternity or inquire about the girls' welfare or what he could do to ensure contact or custody. Despite knowing of the case from its inception, his whereabouts were unknown for most of the proceedings.
Father makes much of his presence at the hospital when L.C. was born and his willingness to let the social worker interview him, but he overlooks the fact he avoided CPS thereafter, including shirking his agreement to attend the team decision making meeting to discuss case strategies to protect the girls' welfare. Father claims he repeatedly requested his grandmother be considered for placement, but this too mischaracterizes the record. There is only one instance of father asking CPS to consider his grandmother for placement, and he made the request so late in the proceedings that the assessment was already underway, apparently on CPS's own initiative.
As the juvenile court pointed out at one of the section 366.26 hearings, if father desired his relatives to be considered for placement, he should have taken the paternity test at the first opportunity. Instead, his attorney asked for the testing and he avoided following through for months. The only reason father was finally reachable for testing was he was returned to local custody for violating parole. This record is simply devoid of evidence suggesting he desired presumed father status. (Cf. In re Baby Boy V. (2006) 140 Cal.App.4th 1108 [appellant entitled to presumed father status because he visited social worker immediately upon learning of child's existence, requested reunification services and a paternity test, appeared at the hearings, and represented to the court his desire to care and provide for the child].)
In any case, even if father did have standing with regard to L.C., the substance of his challenge pertains exclusively to C.C. and is, as we discuss in the next section, unpersuasive.
B. Substantial Evidence Supports C.C.'s Adoptability Finding
"The issue of adoptability requires the court to focus on the child, and whether the child's age, physical condition, and emotional state make it difficult to find a person willing to adopt." (In re Brian P. (2002) 99 Cal.App.4th 616, 624 (Brian P.).) "All that is required is 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.) "It is not necessary that the child already be placed in a preadoptive home, or that a proposed adoptive parent be waiting." (Brian P., at p. 624.) However, the existence of a prospective adoptive family is evidence supporting a conclusion a person would be willing to adopt the child. (In re David H. (1995) 33 Cal.App.4th 368, 378.) If, as here, a child is found to be generally adoptable, the juvenile court does not examine the suitability of a prospective adoptive home. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1061; In re Scott M. (1993) 13 Cal.App.4th 839, 844.)
We reject father's assertion that the juvenile court's adoptability finding was specific (i.e., based solely on the fact a particular family is willing to adopt) rather than general. The court's ruling could not have been more clear—it found the girls "generally" adoptable.
We review a juvenile court's adoptability finding for substantial evidence, giving the finding "the benefit of every reasonable inference and resolve any evidentiary conflicts in [its] favor." (In re B.D. (2008) 159 Cal.App.4th 1218, 1232.) "Although 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." (In re K.B. (2009) 173 Cal.App.4th 1275, 1292.)
Here, the record contains substantial evidence C.C. was generally adoptable. At the time of the juvenile court's determination, C.C. and her sister L.C. were young, both under four years old. The girls were developmentally on track. They were both under school age—C.C. was about to start a preschool program—and had no major emotional or behavioral problems. C.C. wore glasses and had a speech delay which might require developing an IEP once she starts school. She was making appropriate progress with the therapist she was seeing solely for preventative reasons. According to CFS's reports, C.C. and L.C. shared a strong bond. C.C. was also bonded to her foster family and, based on the success of recent visits, she was showing signs she would also be able to develop a bond with her prospective adoptive family as well.
Father suggests C.C.'s speech delay was related to her Marfan syndrome diagnosis, but nothing in the record indicates that is so.
We disagree with father's contention that C.C.'s Marfan syndrome diagnosis precluded a finding of general adoptability. According to the Mayo Clinic, the syndrome does not necessarily result in severe health problems. Its effects can be mild and treated with blood pressure medication. (Mayo Foundation for Medical Education and Research, supra, Marfan syndrome Overview.) Indeed, such appears to be the case with C.C. The only medication she was taking was a recently prescribed blood pressure medication. A general physician and a cardiologist at Loma Linda University Medical Center were monitoring her condition and—as of July 2016—she was showing no symptoms. While she had suffered two seizures when she was one year old, her doctor believed hypoglycemia, not Marfan syndrome, was the cause.
C.C.'s medical record speaks for itself. But perhaps even stronger evidence of C.C.'s general adoptability is the fact there are already two families wanting to care for her—one through adoption and one through a long-term guardianship. If C.C.'s condition were as severe as father suggests, we would expect evidence along those lines from the family who had been caring for her during her diagnosis. Instead, the record contains no indication the foster parents were overwhelmed by her medical condition. To the contrary, they had been successfully caring for her for over a year and a half and wanted to continue to do so for the foreseeable future. This suggests C.C.'s medical needs are manageable.
Father argues this case is like In re Valerie W. (2008) 162 Cal.App.4th 1 (Valerie W.) and Brian P., where the child services agencies failed to provide the court with enough information to make an adoptability determination. We disagree. In Valerie W., the child had "unresolved neurological and genetic issues that required further testing" and the agency had failed to provide the results of his most recent pediatric visit and electroencephalogram. (Id. at pp. 10, 13.) In Brian P., the agency had made conflicting recommendations about the child's permanent plan, failed to discuss the likelihood of adoption, and failed to provide the court with basic facts about the minor, such as the status of his behavioral development. (Brian P., supra, 99 Cal.App.4th at pp. 620-621, 624-625.) Here, in contrast to Valerie W., C.C.'s condition was not unresolved. She had been diagnosed, was under the care of a specialist, and was exhibiting no symptoms. CFS had provided the court with the most recent results of her medical tests, all of which had come back normal. And, unlike Brian P., CFS assessed the likelihood of adoption based on specific facts about C.C. and found, for the reasons discussed above, it was likely a family would want to adopt her.
Seizing upon a single statement the court made at the section 366.26 hearing, father asserts the court was ignorant about Marfan syndrome when it made the adoptability finding. While it is true the court stated, "I just don't know what Marfan syndrome is," father ignores the colloquy following that statement, where the parties began to explain the syndrome and the court stopped them because it realized it knew what the syndrome was. Not only did the court have its own general knowledge of the condition, it had the benefit of C.C.'s medical records, which showed she was currently asymptomatic.
Finally, we reject father's contention the record lacked sufficient information about the prospective adoptive family's ability to care for C.C.'s special medical needs. "[I]t 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 order for a court to find a child adoptable. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) Moreover, "[i]f the child is considered generally adoptable, we do not examine the suitability of the prospective adoptive home." (Valerie W., supra, 162 Cal.App.4th at p. 13.) That the maternal aunt and uncle wanted to adopt C.C. and her sister so much they moved to California from Tennessee to be considered for placement is evidence C.C. is an appealing candidate for adoption in general.
In sum, the record demonstrates C.C. is not medically fragile, has no major behavioral or developmental issues, has a strong bond with her even younger sister, and is able to bond with both her current caretakers and her prospective adoptive family. We see no error in finding such a young, relatively healthy, and agreeable child generally adoptable.
III
DISPOSITION
We affirm the order terminating parental rights.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: McKINSTER
Acting P. J. MILLER
J.