Opinion
A154382
12-21-2018
In re A.G. et al., Persons Coming Under the Juvenile Court Law. SOLANO COUNTY DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Plaintiff and Respondent, v. J.G. (MOTHER) AND A.G. (FATHER), 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. J43788, J41110)
J.G. (Mother) and A.G. (Father) appeal from a juvenile court order terminating their parental rights to their two sons, A.G. (A.) and J.G. (J.). Mother and Father contend the juvenile court erred in finding their sons were adoptable. We disagree and affirm.
BACKGROUND
A Welfare and Institutions Code section 300, subdivision (b) dependency petition was filed by the Solano County Health and Social Services Department (the Department) on March 16, 2017. The petition alleged Mother and Father endangered the health and safety of their sons A., then five years old, and J., then one year old. Both boys were detained and placed in foster care.
All statutory references are to the Welfare & Institutions Code.
Two months later, in May 2017, A. and J. were adjudged dependents of the court when the parties stipulated to allegations in an amended section 300 petition. The petition alleged trash, dirty clothes, and decaying food were found throughout the family house, placing the boys at substantial risk of serious physical harm or illness. A. was found walking on the street unsupervised.
Both Mother and Father had a two-year history of abusing controlled substances, including methamphetamine and opiates. Father also suffered from psychiatric disorders and used marijuana and methamphetamine to alleviate his symptoms which negatively impacted his ability to care for, support and supervise the boys. Mother and Father slurred their speech and could not maintain focus when communicating with law enforcement, and both failed to submit to drug tests.
The six-month report, dated November 7, 2017, recommended that family reunification services be terminated. At the time, Mother's and Father's "progress towards alleviating or mitigating the causes necessitating out of home placement ha[d] been minimal." Neither parent cooperated in a meaningful way with the Department's attempt to provide services, and all their case plan objectives were unmet. According to the Department, the parents showed no consistent behavioral changes to indicate they could safely care for their children. "The parents have actively used methamphetamine that seriously impacts their ability to stabilize their mental health, meet their children's needs, and provide a safe and sanitary living condition for their children." They had not "made significant progress with their Court-ordered case plan responsibilities as they have several missed drug tests, and they have not participated in or completed a substance abuse treatment program and parenting program." Based on input from various service providers, the social worker concluded that "the risk of future abuse and neglect to the children should [A. and J.] be returned is very high."
In December 2017, following a contested six-month hearing, the juvenile court found reasonable services were provided to the parents and that it would be detrimental to return A. and J. to them. The court terminated services to both parents and scheduled a section 366.26 permanency planning hearing. In advance of the permanency planning hearing, the Department submitted a report recommending that parental rights be terminated and adoption be ordered as the permanent plan. The Department evaluated both boys in the report.
A., who was six years old at the time of the section 366.26 report and hearing, had no chronic medical condition. However, he had suffered from a series of physical ailments, including an upper respiratory infection, ear pain, swollen lymph nodes, a bruised left eye, and pneumonia, all of which required some form of medical attention and treatment. He also had a low blood platelet count that appeared to be improving, for which he was required to have monthly blood work. His development and physical growth were normal, as evidenced by his "energetic, talkative" nature. He was able to describe his days in kindergarten and his interest in his toys and was capable of sharing his toys and playing with others. A. was also found to "have formed a strong attachment with [his] caregiver" which was demonstrated by constant responsiveness and affection given her.
A. received weekly individual therapy and weekly behavioral support to address his mental and emotional needs. He was diagnosed with Attention Deficit Hyperactive Disorder (ADHD). He had a short attention span, was not able to follow directions, and tended to focus on minimal things that were not important. He was prescribed medication that was going to be administered pending an updated, corrected medical request to the court. At school, his kindergarten teacher reported he was not listening and had been sent home due to "continuous behavioral issues." Once he was suspended from school for a day and a half because he kicked another boy. A.'s behaviorist and sometimes his therapist accompanied him to school once a week to provide additional support, and further collaboration with A.'s educational rights holder was underway.
At the time of the section 366.26 report, J. was two years old. He was reported as "healthy [and] not diagnosed with any medical condition" and showed "normal" physical growth. His speech was delayed, and he was only capable of saying a couple of words. But he was in the process of starting speech therapy. Otherwise, developmentally, he demonstrated "age appropriate physical growth" and was observed waving goodbye, walking, jumping, and running. The Department's report found "no current mental health or behavioral concerns." He was seen sharing his toys and playing with his brother. Once, he was also seen hitting his brother when he did not get his way, but he was capable of listening to redirection and following his caregiver's instructions. In addition, he was found to "have formed a strong attachment with [his] caregiver," with whom he had spent half his life, as demonstrated by constant responsiveness and affection towards her.
The Department stated: "[A.] and [J.] are good candidates for adoption planning. [A.] has Attention Deficit Hyperactive Disorder (ADHD) and [J.] has a speech delay. Yet, they demonstrate age appropriate physical growth and have no medical concerns. They have been observed to be capable of forming positive, emotional attachments with their current caregiver." The boys were observed "seek[ing] the comfort of the caregiver" and "bond[ing] with parental figures, despite having a positive attachment with their biological parents. They can build relationships with others, are able to share their space, and engage in play with others."
A. and J. were assessed as "generally adoptable" and the Department was "seeking a permanent home that is well equipped to handle all of the children's needs. [A.] and [J.] require special [needs], which in turn will require the prospective caregiver(s) to have a flexible schedule that enables them to have the availability to attend/schedule all of the children's services and appointments to suit the children's needs." The Department knew of "other adoptive families who would be interested in adopting children such as [A.] and [J.] who are also willing to work with them to address their needs."
In addition, the section 322.26 report provided that "the [boys'] caregiver and her fiancée ha[d] come forward to request to be considered for adoption for [A.] and [J.]" The Department was in the process of considering the adoption home study. However, because there were concerns about the "caregiver's ability to . . . understand the needs of the children," the Department did not formally identify an adoptive family for A. and J. Nonetheless, it "considered [A. and J.] to be adoptable and the prognosis for identifying an adoptive family [was] considered good."
Following the contested section 366.26 hearing, the juvenile court found both children generally adoptable. The court terminated Mother's and Father's parental rights and ordered a permanent plan of adoption.
Mother and Father separately appealed from the order.
DISCUSSION
Mother contends the Department failed to establish A. and J. were likely to be adopted within a reasonable time. Father joins in Mother's arguments and further argues the evidence the boys were adoptable did not substantiate the juvenile court's decision to terminate their parental rights. Both seek reversal of the termination order, and Mother also urges a "lesser permanent plan" short of adoption.
To order adoption as the permanent plan for a dependent child, the juvenile court must find by clear and convincing evidence that the child is adoptable. (In re Zeth S. (2003) 31 Cal.4th 396, 406 (Zeth).) "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 (K.B.).) The California Supreme Court explained: " 'The issue of adoptability . . . focuses on the minor, e.g., whether the minor's age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor." (Zeth S., supra, 31 Cal.4th at p. 406.) Under section 366.26, subdivision (c)(1), "[i]f 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." (§ 366.26, subd. (c)(1).)
When we review a termination order, " 'we determine whether the record contains substantial evidence from which a reasonable trier of fact could make the finding by clear and convincing evidence that [the child] was likely to be adopted within a reasonable time. [Citations.]' " (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1561-1562; see also Zeth S., supra, 31 Cal.4th at p. 406.) We give the court's adoptability finding the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of the order. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) "It is irrelevant that there may be evidence which would support a contrary conclusion." (K.B., supra, 173 Cal.App.4th at p. 1292.)
Here, there was substantial evidence supporting the juvenile court's findings that both boys were adoptable.
J., the younger sibling, was two years old and healthy. He had not been diagnosed with any medical conditions. He did have a speech delay but was starting speech therapy to address it. Otherwise, developmentally, he demonstrated "age appropriate physical growth." The Department reported "no current mental health or behavioral concerns." Based on his "constant responsiveness and affection," J. was observed to have a strong attachment with his caregiver, with whom he had spent half his life. Thus, based on J.'s young age, his general physical, emotional, mental, and overall developmental well-being, the juvenile court properly found him generally adoptable.
The older sibling, A., presented a more complicated picture. He had some special needs, but even so, there was clear and convincing evidence to support the juvenile court's decision. Six years old at the time of the section 366.26 assessment, A. was relatively young. He was "not diagnosed with any medical condition." To be sure, the Department identified a number of physical ailments: ear pain, swollen lymph nodes, a bruise on his left eye, and a bout with pneumonia. But most of these were temporary, and some form of uncomplicated medical treatment (e.g., ibuprofen) was provided to address them. He did have a low blood platelet count which required monthly blood tests but even that looked to be improving. Nothing in the record suggested that A.'s medical condition rendered him unadoptable, or that his medical issues presented a formidable challenge for any prospective foster parent.
The Department's section 366.26 assessment further noted that A. demonstrated appropriate development and physical growth. This was evidenced by his "energetic, talkative" nature. His social worker noted his ability to describe his days in kindergarten and his interest in his toys. He was capable of sharing his toys and playing with others. Also, like his younger brother, A. was found to "have formed a strong attachment with [his] caregiver" which was demonstrated by constant responsiveness and affection towards her. A.'s relative youth, good physical health, and his ability to develop solid interpersonal relationships with his younger brother and his caregiver provided substantial evidence to support for the juvenile court's adoptability finding for A.
The adoptability findings for both boys were further bolstered by the fact the caregiver and her fiancée wanted to adopt them. As a general rule, " '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.' [Citation.]" (In re Asia L. (2003)107 Cal.App.4th 498, 510.) The boys' caregiver and her fiancée asked to be considered for the boys' adoptive family. The Department also stated it knew of other families who would be interested in adopting children such as A. and J.
Mother says that J. has "unresolved special needs" that negate the clear and convincing evidence finding the boys were likely to be adopted. Mother asserts J. "was experiencing developmental problems" because of his speech delay and he was only capable of saying a couple of words at age two. We disagree with Mother's characterization. J. was starting speech therapy. There is no showing that his speech delay was an impediment to finding an adoptive placement, or that it negates adoptability. (See In re R.C. (2008) 169 Cal.App.4th 486, 492 (R.C.) [child was adoptable despite slight speech delays].)
Most of the Mother and Father's arguments are premised upon A.'s behavioral history. Mother asserts A.'s "significant ongoing behavioral and development issues" do not support the clear and convincing evidence finding the boys were likely to be adopted within a reasonable time. She contends the Department's adoption assessment actually "undermine[d] the juvenile court's adoptability finding." Echoing these sentiments, Father says that the social worker's conclusion of adoptability is not only unsubstantiated but "actually belied by the evidence."
There is no question A. has some special needs. Indeed, the record reveals some mental and emotional issues which appear to affect his education. He has ADHD and was described as having "an attention span [that] is very short, not [being] able to follow directions, and tend[ing] to focus on very minimal things that are not important." At school, he found it difficult to listen to his kindergarten teacher and was sent home due to "continuous behavioral issues." He was even suspended once for kicking a boy. But these issues were being managed, or efforts were underway to do so. A behaviorist was working with A. weekly, and A. was just prescribed medication for his ADHD.
Moreover, A.'s issues were not fatal to his general adoptability. Even children with numerous health, emotional, and behavioral issues can be considered generally adoptable when the children have other appealing characteristics. (See In re Helen W. (2007) 150 Cal.App.4th 71, 79-80.) Neither do extreme behaviors or ADHD symptoms prevent an adoptability finding. (In re I.I. (2008) 168 Cal.App.4th 857, 870-871.) When a child is young and healthy, courts have little problem finding him or her generally adoptable. (In re R.C., supra, 169 Cal.App.4th at pp. 489-492.)
Mother's reliance on Valerie W. (2008) 162 Cal.App.4th 1 is misplaced. In that case, the court concluded there was insufficient evidence in the Department's assessment to support the juvenile court's findings. (Id. at p. 13-15.) The assessment report failed to comply with the requirements of section 366.21 and did not provide the juvenile court with sufficient information for its adoptability analysis. (Id. at pp. 13-14.) These deficiencies undermined the basis of the court's decision. (Id. at p. 16.) Because Mother admits that her "challenge is not directed at the sufficiency of the adoption assessment," the case is not instructive here.
Finally, Mother and Father identify problems with boys' current caregivers as suitable adoptive parents. Mother asserts they "have not demonstrated sufficient commitment or ability" to deal with the boys' "significant issues" and cites examples from the Department's report expressing concerns about the caregiver's responses to A.'s behavior. These issues, however, are irrelevant. (See In re Carl R. (2005) 128 Cal.App.4th 1051, 1061 ["[A]s a general rule, the suitability of the prospective adoptive family does not constitute a legal impediment to adoption and is irrelevant to the issue of whether a child is likely to be adopted."].) Here, there was substantial evidence supporting the general adoptability findings as to both boys. Whatever issues Mother, the Department, or the Court Appointed Special Advocate may have had with the caretaker do not undermine this conclusion.
DISPOSITION
The juvenile court's order terminating parental rights is affirmed.
/s/_________
Siggins, P.J. We concur: /s/_________
Jenkins, J. /s/_________
Fujisaki, J.