Opinion
E069036
02-05-2018
In re M.A. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. V.A., Defendant and Appellant.
Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Adam E. Ebright, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J264591, J264592, J264593 & J264594) OPINION APPEAL from the Superior Court of San Bernardino County. Christopher B. Marshall, Judge. Affirmed. Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Adam E. Ebright, Deputy County Counsel, for Plaintiff and Respondent.
V.A. (mother) appeals the order terminating her parental rights and finding her children, now ten, nine, eight and five, likely to be adopted. (Welf. & Inst. Code, § 366.26 (unlabeled statutory citations refer to this code).) Mother argues the record contains insufficient evidence to support the juvenile court's adoptability finding.
We affirm.
I
FACTUAL BACKGROUND
Mother and father have four children who were removed from their care. At the time these dependency proceedings began, the children, J., L., H., and M., were eight, seven, six, and three years old, respectively. This appeal pertains to all four children, but concerns only mother's parental rights.
A. Referral, Investigation, and Detention
J. came to the attention of the San Bernardino County Children and Family Services (the department) through a referral from his elementary school. On March 10, 2016, a teacher noticed bruises all over J.'s body as well as injuries which looked like cigarette burns. J. tried to hide the marks and blamed them on his younger brother, but the school contacted the department.
A social worker for the department interviewed mother, father, J., and his younger sister L. Mother and father said J. and his younger brother H. fought regularly and J. bruised easily. J. and his sister L. told the social worker the same story, saying H. had hit J., and when their parents found out they put H. in a time-out. Both children showed the social worker bruises on their bodies.
Later that day, the parents took J., L., and H. to the hospital. The parents reported mother was employed fulltime and father was on disability and acted as the children's primary caregiver. They offered the same explanation as previously for J.'s injuries. However, the physician who examined him had concerns and decided to run additional tests and admitted J. to the hospital. Doctors reported L. and H. did not have any suspicious injuries, and the parents did not bring M. in for an examination.
The next day, the physician reported she believed J.'s injuries were due to abuse and neglect. The medical report said J.'s right elbow had a deformity—a widening of the distal left radial physis—indicative of an untreated fracture. The report also said J. had diffuse bruising and reddening of the left ear. The physician recommended removing all four children from the care and custody of mother and father.
On March 14, 2016, the social worker spoke with the physician. The physician reported the parents minimized their child welfare history. They said H. had injured J. by pinching him. When the doctor pointed out H. had no injuries, the parents said J. didn't fight back. When the doctor told the parents she thought J.'s injuries were not consistent with their explanations, they had nothing else to say. The doctor said J. had a right arm deformity and very old untreated fractures. The doctor reiterated she believed the injuries were due to abuse and neglect and the department should remove all four children from the parents' custody. The department took all four children into custody the same day. They placed the two boys (J. and H.) together in one foster care home and the two girls (L. and M.) in another foster care home.
From 2008 to 2010, the family was involved in another child welfare case based on allegations of physical abuse and severe neglect affecting the older two siblings, J. and L. Then, the department recommended against providing reunification services because of the serious nature of injuries to J., specifically that he had suffered broken bones. However, the trial court ordered services, and the parents ultimately reunified with both children.
On March 16, 2016, the department filed section 300 petitions, alleging the children had suffered or were at substantial risk of suffering serious physical harm due to mother's and father's abuse and neglect. In J.'s petition, they alleged he sustained injuries (including untreated fractures, pervasive bruising, and reddening of the left ear) while in the care of both mother and father; the department had removed him from the parents' custody for similar allegations from 2008 to 2010; and both parents failed to provide for his basic need of medical treatment. (§ 300, subds. (a) & (b).) The department also alleged J. suffered severe physical abuse by a parent when under the age of five. (§ 300, subd. (e).) The department filed separate petitions for the other three siblings alleging they were at risk of serious physical harm based on their parents' treatment of their brother. (§ 300, subds. (b) & (j).)
The trial court held a detention hearing the next day. The court found the department had established a prima facie case the children came under section 300 and ordered them detained. The court found the children's foster placements appropriate and ordered weekly supervised two-hour parental visits. The court also ordered the parents not to discuss the case with the children.
B. Jurisdiction and Removal
The department filed a jurisdiction/disposition report on April 5, 2016, recommending the trial court find the section 300 allegations true and order reunification services for the parents.
The social worker reported mother believed the department had gotten involved because she didn't do a good enough job keeping the children from hurting each other. She said J.'s injuries came from the children hitting each other and denied either she or father used physical discipline. She also said she thinks J. may have spider bites. J., M., and L. confirmed H. hits them and they all fight a lot.
The social worker reported J. is aggressive with his siblings and hits them even while under supervision. The parents said he had been diagnosed with ADHD, but hadn't been prescribed any medication. L. seemed healthy overall, but had a speech and comprehension delay, appeared somewhat parentified, and struggled with separation from her parents. H. appeared to be on target developmentally, but exhibited hyperactive behavior, and made inappropriate sexual statements. M. was adjusting well in her placement and appeared to be at ease with the foster parents.
The social worker concluded the prognosis for reunification was very poor because the parents have a prior history of abuse, little insight into how J. was seriously injured, and the children are hyperactive, impulsive, and aggressive—behaviors which increase the risk of abuse. Nevertheless, and depending on additional information about the extent of the abuse, the department's initial recommendation was to provide reunification services to both parents.
Further investigation caused the department to change its recommendation. In an addendum report, the social worker recommended the trial court not order reunification services and set a section 366.26 hearing to select a permanent plan. She reported disturbing results from a reassessment of J.'s physical condition. The doctor said J. had several unexplained fractures from the previous dependency case, including fractures in his left humerus and both tibias. In addition, the assessment revealed chronic fractures of the right humerus, left wrist, and ribs, as well as widespread skin injuries and scars of various ages. The doctor reported the fracture to the right humerus had resulted in a deformity and limited mobility in the arm.
The parents continued to claim that J.'s injuries were the result of rough play with H., but during the examination J. said his father pinches him on his back, legs, and chest, then tells J. to say that H. caused the injuries. J. also said mother made him wear long sleeve clothing and pants to conceal the injuries, and mother told him the school would call the police and father would get in trouble if they saw the bruises. Father warned he would go to jail if J. reported he had caused the injuries.
The children later made additional still more disturbing disclosures. The children said father had twisted J.'s arm until it broke, choked them, punched them in the stomach, and sometimes held J.'s head underwater in the bathroom sink. J. said he feared he would die from father's abuse. They said mother and their paternal grandmother knew about the abuse. The children also disclosed domestic violence in the home. At one point, father pulled a knife on mother, and once father kicked mother out of the house. L. sometimes tried to defend mother and would cry when she saw father hitting her. On one occasion, father punched L. in the back when she tried to intervene.
J. and H. also accused their father of sexual abuse. They said father would put his "private" against H.'s butt, and force J. to suck his penis. Father would also suck on both children's penises. Mother was aware of this abuse and even witnessed one incident, but did nothing to stop it. After these disclosures, law enforcement arrested father and charged him with sexual abuse, physical abuse, and torture. The department amended the section 300 petitions to include sexual abuse and domestic violence allegations. (§ 300, subds. (b) & (d).) In the face of these allegations, mother continued to deny any domestic or sexual abuse occurred in the home.
On June 10, 2016, the social worker requested the trial court suspend mother's visits. The department reported mother had been making inappropriate comments to the children during visits—contrary to the court's order—and discussing the allegations with them. Mother asked the children why they had talked about the sexual abuse and accused them of lying. When confronted, mother denied she said anything to the children.
On June 28, 2016, the court found the children came under section 300 and found the allegations in the amended petitions true. The court found it was not in the children's best interest to have visits with mother and suspended the visits. One month later, the court denied reunification services for both parents and scheduled a section 366.26 hearing to select a permanent placement plan.
C. Permanency Planning, Adoptability, and Termination of Parental Rights
The social worker prepared a section 366.26 report recommending a permanent plan of adoption and requesting a 180-day continuance to locate and place the children in adoptive homes.
She reported the children were in good health but continued to exhibit developmental issues related to their abuse. M. was assessed as borderline in the areas of problem solving and personal-social issues. She was described as a cheerful and affectionate child. She was scheduled to start Sexual Assault Response Team (SART) services within the month. L. was assessed as a caring and alert child who likes to be helpful. Her caregiver said she would sometimes get mad and jealous when the caregiver paid a lot of attention to the other children, but reported no other problems. L. had completed SART services and her foster parents reported her initial issues had decreased since the removal. The boys' foster parents described them as active, outgoing, and friendly. They said the boys enjoyed riding their bikes and playing outside. J. was working hard on being less angry and aggressive, but was still very hyper. The boys still fought each other and made inappropriate sexual remarks, but they had recently started services in an effort to reduce those behaviors. The children struggled academically, and both boys continued getting in trouble at school for aggression towards other children. Despite these issues, all four children were described as affectionate and loving kids.
The social worker continued to believe adoption was in the children's best interests. The primary factors making the children difficult to place were (i) the fact they were a large sibling group, (ii) two of the children were older than seven, and (iii) they exhibited intellectual, emotional, behavioral, and physical problems. The social worker suggested finding multiple placements for the children if a single home could not be located. The department said these challenges made it difficult to find an adoptive home. The trial court continued the section 366.26 hearing so the department could work on finding homes.
The social worker said all four children were appropriate for adoption, and on May 1, 2017, she filed an addendum report indicating they had located a prospective adoptive home for M., L., and H. The adoptive parents, located in New Jersey, were committed to caring for and meeting the needs of the three younger siblings, but could not adopt J. because of his behavioral problems. They said they were willing to help keep the younger siblings in contact with J. The adoptive parents were a married couple in their sixties who had been together for over 30 years, raised biological children, and had two other adopted children. The adoptive parents were aware of the children's known medical, psychological, social, education, and background issues. The children and prospective adoptive parents began having twice-weekly telephone calls, and the parents flew to California to spend a day with the children.
On July 24, 2017, the social worker informed the court the department had found a different adoptive home for J. The adoptive parents, located in Northern California, already had an approved home study. The adoptive parents were two men who had been together as a couple for 15 years and had previously raised two adoptive children. They were aware of J.'s emotional and behavioral issues and were prepared to help him. They said they wanted to assure J. maintained contact with his siblings, and met with the adoptive parents of the three younger children. The adoptive parents had video calls with J. twice and visited J. over a three-day weekend. J. then visited their home for four days. After the visit, J. said he didn't want to leave. J. wrote a letter saying he liked the home and wanted to live with the prospective adoptive parents.
At the August 29, 2017 section 366.26 hearing, mother's trial counsel argued the children run a high risk of becoming legal orphans and asked that parental rights not be terminated. Counsel for the department acknowledged the children have some behavioral challenges, but argued they are adoptable and the court should not hold against them the fact it took time to find adoptive homes.
The trial court concluded the children are likely candidates for adoption and were generally and specifically adoptable. The court considered the children's health, age, development, personality, and personal characteristics, and concluded any emotional or psychological issues did not disqualify them from being adoptable. In J.'s case, the court found his adoptive parents were well qualified and there was no evidence of any legal impediment to adoption. The court found there was clear and convincing evidence the children would be adopted in a reasonable time, found no exceptions to terminating parental rights applied, and terminated mother's and father's parental rights.
Mother filed a timely notice of appeal.
II
DISCUSSION
Mother appeals on one basis only—there was insufficient evidence the children were adoptable. She argues the children were not generally adoptable because of their extensive special needs. She also argues that, though the department has identified prospective adoptive families, the children are not specifically adoptable because there was insufficient evidence of the prospective parents' eligibility and commitment to adopt.
"'The 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. [Citations.] In making this determination, the juvenile court must focus on the child, and whether the child's age, physical condition, and emotional state may make it difficult to find an adoptive family. [Citations.] In reviewing the juvenile court's order, we determine whether the record contains 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. (2005) 126 Cal.App.4th 1554, 1561-1562 (Gregory A.).)
"A child's young age, good physical and emotional health, intellectual growth and ability to develop interpersonal relationships are all attributes indicating adoptability. [Citation.] '"Usually, 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.'"" (Gregory A., supra, 126 Cal.App.4th at p. 1562.) "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.)
Our record contains substantial evidence J., L., H., and M. were adoptable. Though the department reported the children had developmental and behavior issues related to the severe abuse suffered at the hands of their biological parents, they also reported improvements since their removal. All the children had begun receiving therapeutic services, and all were affectionate, loving, and desired attention. L.'s foster parents reported she was a caring and alert child who liked to be helpful. They said her initial problems had decreased since the beginning of the placement. M. was described as a cheerful and affectionate child. She was scheduled to start SART services within the month. The foster parents of J. and H. described them as active, outgoing, and friendly, and said they enjoyed riding their bikes and playing outside. The boys' behavior appears to pose the biggest obstacle to adoption. J. remained hyperactive, but was working to be less angry and aggressive. The boys still fought each other and made inappropriate sexual remarks, but they had recently started services in an effort to reduce those behaviors.
On balance, we find sufficient evidence a parent or family would be willing to adopt these children in a reasonable time. Though they are not without their behavioral problems, they are, overall and despite substantial obstacles, happy, healthy, and active children, capable of forming emotional bonds with those who care for them. In addition, the children have found two families who are willing to accept them despite the behavioral problems. Both families have experience raising adoptive children. And both families have made substantial commitments to the children, sharing extended visits and even working out plans between themselves to ensure the siblings will be able to maintain contact as they grow up. This evidence provides strong support for the trial court's finding the children are adoptable.
It does not matter that the adoption process has not reached its conclusion. "It is not necessary that the child already be placed in a preadoptive home, or that a proposed adoptive parent be waiting." (In re Brian P. (2002) 99 Cal.App.4th 616, 624.) The fact a prospective adoptive parent expressed interest in adopting the children is evidence their age, condition, and behavior are not likely to dissuade individuals from adopting them. (Gregory A., supra, 126 Cal.App.4th at p. 1562.) "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." (Ibid.)
Mother argues the trial court should have looked beyond the children and determined the suitability of the adoptive families because its adoptability finding is based solely upon those families' willingness to adopt. We disagree with mother's characterization of the support for the trial court's adoptability finding. There was evidence the children were happy, healthy, and active, despite their behavioral problems. There was also evidence the children had improved after being removed from their abusive environment. That the children also found families who were willing to adopt them provided additional evidence to support the trial court's general adoptability finding. Thus, we conclude the trial court was not required to inquire further into the suitability of the adoptive families. (In re Scott M. (1993) 13 Cal.App.4th 839, 844.)
Finally, mother argues terminating her parental rights exposes her children to the risk of becoming legal orphans if the proposed adoptions fall through. However, the termination statute allows children to petition to reinstate parental rights if circumstances change and allows the court to reinstate those rights if the child is no longer adoptable and doing so is in the best interest of the children. (§ 366.26, subd. (i)(3); In re I.I. (2008) 168 Cal.App.4th 857, 871.)
III
DISPOSITION
We affirm the orders finding the children adoptable and terminating parental rights.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: McKINSTER
Acting P. J. MILLER
J.