Opinion
F076019
02-20-2018
In re WILLIAM F., et al., Persons Coming Under the Juvenile Court Law. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent, v. RICHARD F., Defendant and Appellant.
Aida Aslanian, under appointment by the Court of Appeal, for Defendant and Appellant. John P. Doering, County Counsel, and Carrie M. Stephens, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 516690, 516691)
OPINION
APPEAL from orders of the Superior Court of Stanislaus County. Ann Q. Ameral, Judge. Aida Aslanian, under appointment by the Court of Appeal, for Defendant and Appellant. John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
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Richard F. (father) appeals from the juvenile court's May 12, 2017 orders granting the Stanislaus County Community Services Agency's (Agency) Welfare and Institutions Code section 388 petitions and suspending visits with his sons, 11-year-old William and eight-year-old Alfred (collectively the boys). Father also appeals from the June 13, 2017 order issued at a subsequent section 366.26 hearing for Alfred that terminated his parental rights as to Alfred. Father contends there was insufficient evidence to support the juvenile court's findings that (1) his visits were detrimental to the boys, and (2) Alfred was likely to be adopted within a reasonable time. We reject father's contentions and affirm.
Undesignated statutory references are to the Welfare and Institutions Code.
Father's notice of appeal, which was filed on July 6, 2017, states that he is appealing the "5/10/17 termination of visitation." The notice of appeal does not list either the date of the appealable order that suspended visitation, May 12, 2017, or the June 13, 2017 order terminating his parental rights. Father has filed a motion to perfect the notice of appeal to correct the date of the visitation order and include an appeal from the order terminating parental rights, which we deferred ruling on pending consideration of the appeal on its merits. As the Agency does not object to either correction and the notice of appeal would be timely as to both orders, (see In re Madison W. (2006) 141 Cal.App.4th 1447, 1450), we grant the motion and construe the notice of appeal as being from the May 12, 2017 and June 13, 2017 orders.
FACTUAL AND PROCEDURAL BACKGROUND
These dependency proceedings began in June 2013 when the Agency took then seven-year-old William, who is autistic, and four-year-old Alfred, into protective custody after they were found wandering outside the family's home unsupervised. Father and his wife, M.H., the boys' mother (mother), were arrested for child endangerment. The Agency filed a first amended dependency petition on the boys' behalf, alleging they were at substantial risk of harm due to mother's history of substance abuse, the filthy and hazardous condition of the family's home, the lack of supervision of the boys, mother's untreated extreme anxiety and depression, and the parents' history of domestic violence.
Father and mother have three adult daughters. Another daughter, 10-year-old Emily, was in the care of family friends when these proceedings began. While the Agency filed a dependency petition as to Emily, she remained in the care of the family friends, Ron and Shelly M., and the juvenile court ultimately dismissed the petition.
Mother had a history of drug use and father a history of mental health issues. In 2006, mother tested positive for amphetamines at William's birth. She admitted to using drugs during her pregnancy and father admitted to having been involuntarily committed in 2006. Father was diagnosed with adjustment and personality disorders, but was not prescribed medication. The parents participated in six months of voluntary maintenance services, during which mother completed alcohol and drug treatment. The case was closed in November 2016.
Father claimed he had a mental breakdown and police took him to a hospital, where he was evaluated and released shortly thereafter.
In 2009, mother tested positive for marijuana at Alfred's birth and admitted to daily marijuana use. She used Oxycontin until her third month of pregnancy, when she initiated drug treatment and was placed on methadone.
William was significantly delayed for his age and non-verbal. His parents said he was diagnosed with autism when he was three years old, but they were not connected with any services for him. The Agency referred him to the regional center for a developmental screening. William was enrolled in a severely autistic program at his school when he was detained.
The boys were removed from their initial foster care placement after one day and their second placement after a week because the caregivers were not equipped to meet William's needs. William's caregivers described him as affectionate and loving but a "lot of work." He loved to "climb all over the place and was very active." He also was anxious and picked at his skin or objects near him when he was not engaged in an activity. Approximately two weeks into the boys' third placement, the caregivers gave the Agency a seven-day notice to remove them due to Alfred's behavior. While he was reported to be energetic and loving, he exhibited sexualized behavior with other foster children, including his brother. The Agency then placed the boys in separate foster homes, but advised the court it would continue to try to place the boys together.
At a contested jurisdiction and disposition hearing, the juvenile court amended the first amended petition and found it true as modified, ordered the boys removed from their parents' custody, and ordered reunification services for the parents. The parents were given weekly visits with the boys.
Father appealed from the dispositional order and challenged the removal order. We rejected father's claim and affirmed the removal order in an unpublished opinion, In re William F., et. al. (Mar. 10, 2014, F067834).
The parents, however, failed to complete any of their reunification services, despite being given 12 months of services. As pertinent here, father had been ordered to complete a clinical assessment to determine if there were additional services that would benefit him and whether domestic violence counseling was needed. Father eventually completed the assessment in July 2014, after numerous missed and cancelled appointments. He was diagnosed as having an adjustment disorder with disturbance of emotions and conduct. Father expressed frustration and anger toward the child welfare process, and easily fixated on the injustices he felt were being inflicted on him. He did not take any responsibility for his part in the boys' removal or for failing to follow his service plan; instead, he blamed others. The marriage and family therapist recommended father complete a 16-week anger management program and any additional anger management or domestic violence programs the facilitator might recommend.
In March 2014, the boys were moved from their separate foster placements in Sacramento to a Modesto foster home to help facilitate the family reunification process since the parents lived in Modesto. William, however, was moved from the home because the foster parent was unable to provide him with the level of care he required. In July 2014, he was placed in an autism group home approved by the regional center.
Alfred remained in the Modesto foster home. While the family worked hard to redirect his behavior, they were unable to meet his needs after several months of trying. Alfred simulated his brother's behaviors after every family visit and it was becoming difficult to maintain the house structure following visits. During a foster family camping trip, Alfred physically attacked another child in the pool and his behavior dominated the entire trip to the point the family had to stay in the campsite. In June 2014, Alfred was moved to a foster home in Merced County. The social worker was unable to locate a concurrent placement due to Alfred's difficult behavior. Alfred's mental health was assessed; it was determined that he was "at risk" and mental health services were appropriate.
In a report prepared for the 12-month review hearing, the Agency recommended termination of the parents' reunification services, long-term foster care for William, and the setting of a section 366.26 hearing for Alfred. While Alfred's current caregiver in Merced was willing to consider guardianship or adoption, it was too soon to make that decision, and his prior caregiver had asked that he be moved due to his aggressive and out-of-control behavior when around other children. The social worker was going to work with the adoptions unit to explore the possibility of a permanent home, but admitted it was possible long-term foster care was the best permanent plan for Alfred until his behavior could be stabilized. As for William, it did not appear that he was adoptable due to his autism and related behaviors, and no one had come forward to offer guardianship for him. Since William's current placement was meeting his needs, it appeared that long-term foster care was the best permanent plan for him.
At the August 2014 contested 12-month review hearing, the Agency asked the juvenile court to order long-term foster care as to both boys, as it was unable to find an appropriate concurrent home for Alfred. The Agency wanted parental visits reduced to once a month, as the parents were not visiting consistently and the boys were having behavior problems following visits. Mother's and father's attorneys, however, objected, asserting it was William's caretakers who were having difficulty getting him to visits on time. Moreover, father had been visiting consistently until a month before the hearing, when he started working. The social worker explained that Alfred's behavior became "out of control" and was progressively worsening after visits, which was why the former foster mother was not able to take care of him and his current foster mother was almost ready to give notice. The boys' attorney thought twice a month visits were appropriate, as Alfred enjoyed the visits and the staff at William's home did not have any concerns about visits.
The juvenile court terminated both parents' reunification services. The court found there was a compelling reason not to set a section 366.26 hearing, as it did not appear that adoption or guardianship was a viable plan for either boy, therefore long-term foster care was the best permanent plan. The court gave the parents conjoint visits a minimum of twice per month, but directed the parents to arrive at least an hour before visits.
The Progress Review Hearings
Progress review hearings were held every six months over the next two years, with the boys' plans of long-term foster care remaining the same. During this period, William remained in his group home and attended a non-public school to address his behavior and autism-related symptoms. He was doing well both in his placement and at school. He interacted more with the social worker and others, his verbalization improved, and his physical aggression had diminished.
Alfred had several changes in placement during this period, and had difficulty controlling his behavior at home and school. Alfred was suspended from school three times between August 2014 and February 2015. In one incident, he threw a girl's shoe over the fence, and there were reports that he choked a kid and was often disruptive in class. His kindergarten teacher stated that he was challenging, did not deal well with consequences, and was easily distracted when he was upset. Alfred began receiving mental health services through the Children's System of Care (CSOC), as well as Therapeutic Behavioral Services.
By February 2015, Alfred was moved to his former foster home in Sacramento County due to his unstable behavior. He was moved again in April 2015 to a foster home in Turlock, where he was molested by another foster youth in the home. Finally, Alfred was moved to a foster home in Tracy in August 2015, as his caregiver had a medical emergency that left the caregiver unable to care for him.
In November 2015, an adult sibling who lived in Oregon told the Agency she wanted to adopt the boys. In December 2015, the juvenile court granted the Agency's motion for approval of an Interstate Compact on the Placement of Children (ICPC) and ordered an expedited process with Oregon.
Alfred had difficulty adjusting after his move to the foster home in Tracy. While the home was a loving one and he was "very happy" there, his behavior regressed when he became aware that his sibling had requested placement. He had difficulty focusing at school and his chronic behavioral issues caused him to be removed from the classroom. Alfred continued to receive mental health services through CSOC, and intensive services through the Pathways to Wellbeing Program (PWP). While he had a medication evaluation appointment with child psychiatrist Dr. Bernardo Mora, it was decided to try to adjust Alfred's behavior without medication. By February 2016, steady progress was being made toward improving Alfred's behavior, although there had been some "bumps in the road."
In March 2016, the juvenile court granted the request of Alfred's foster parents, Mr. and Mrs. M., to be declared his de facto parents. The M.'s declared that they wanted to adopt Alfred. While Alfred had ADHD, showed signs of anxiety, and could be stubborn if he did not get his way, he also told Mrs. M. every day, "Mom, please don't let them take me."
Parental visits with the boys went well when they occurred, and were enjoyable for the family. Visits were inconsistent due to various situations, such as father's incarceration on the child endangerment charges from early June to mid-July 2015, or the parents' transportation issues. The gaps in visits were very difficult for the boys.
The July 2016 Review Hearing
In a report prepared for the July 2016 review hearing, the Agency recommended that a section 366.26 hearing be set for Alfred to consider a permanent plan of adoption by the M.'s, and that William remain in long-term foster care. Oregon had denied the Agency's requested ICPC.
The parents had biweekly visits with the boys, which they all enjoyed. They continued to have difficulty with transportation, which disrupted visits. Moreover, both parents had been incarcerated at times during the past six months for violations of their probation associated with this case. The boys experienced a "significant amount of distress and disruption" when the parents were not at visits. Two visits in July had to be rescheduled to a time when social worker Keri Brandt or her supervisor could be present, due to father making indirect threats toward the boys and the Agency, which caused concern and led to safety precautions being put into place.
Alfred had completed the first grade; his school had embraced him and was very supportive. Alfred received satisfactory marks in his academics during the last quarter of school. Alfred was assessed for special education services, but he did not qualify for them. It was decided that a "504 plan" would be established the following school year to assist with Alfred's behavior. Alfred was attending summer school; he struggled with the change in schedule and setting. Alfred was "very popular even with the older classmen high fiving him when he walks on campus." The Agency recommended that the M.'s be assigned Alfred's educational rights.
The Agency reported that while the boys were becoming more stable, the parents' struggles had caused "great instability" in the boys' situations and with visits. While the parents obviously loved the boys, they were unable to stabilize themselves so that community visits could occur. As the parents floundered, the boys struggled to maintain their emotional health, which caused significant disturbances in home and at school. There were minimal behavioral concerns regarding William, who was progressing in his social and academic functioning. While Alfred had periods of calm, "something would happen" that would cause him to struggle again. This cycle continued throughout the past six months.
The social worker described the boys as "an absolute pleasure to be around and they are both extremely intelligent and loving." The social worker was pleased that Alfred was in a permanent situation with a family that adored him. Both the family and Alfred were "very excited at the prospect of adoption[,]" and Alfred had made it clear that if he were unable to be with his parents, he wanted "this to be his forever home."
At the July 27, 2016 hearing, the juvenile court first conducted the review as to William. William's plan remained the same - placement with his current care provider - and a section 366.3 review hearing was set for January 2017. The court approved William's case plan, which changed parental visits from a minimum of twice per month to a minimum of one supervised visit per month, and added that visits could take place at either the Agency or "other approved location." The parents requested a contested hearing as to Alfred, which the juvenile court set for August 9, 2016. Since school was starting soon, the juvenile court suspended the parents' educational rights as to Alfred and assigned them to the M.'s on a "temporary basis pending the next hearing."
At the August 9, 2016 hearing, the parties submitted on the report, with the parents objecting to setting a section 366.26 hearing for Alfred. The M.'s told the juvenile court that Alfred was "doing great" and he was excited about the first day of school. The court approved the case plan, which included changed visitation to once per month at either the Agency or other approved location, and set the section 366.26 hearing for December 8, 2016.
While father filed a notice of intent to file a writ petition, his case was dismissed as abandoned because a petition for extraordinary writ was not filed within the time permitted.
The December 2016 Section 366 .26 Hearing
In its report prepared for the section 366.26 hearing, the Agency recommended that the hearing be continued 180 days pursuant to section 366.26, subdivision (c)(3). The social worker stated that while the prospective adoptive parents, the M.'s, remained "very committed to Alfred[,]" his behavior required consistent, ongoing, intensive services that would not be in his best interest to disrupt at that time. The M.'s sometimes expressed "being overwhelmed" and the social worker wanted to be certain the family was stable before moving forward with adoption.
The social worker noted the M.'s were prepared to adopt Alfred, as he had "become a very important part of their family and they loved him very much." The M.'s had been meeting Alfred's emotional, physical and educational needs for the past 15 months, and they had bonded with him. The social worker opined the M.'s were capable of continuing to care for Alfred, although they had expressed that his needs sometimes were "rather intense" and "overwhelming." While the M.'s were hesitant to continue the hearing, they agreed more time would be helpful.
Alfred last visited with father on June 28, 2016. Mother's last visit was on November 3, 2016; before that, she last visited Alfred on August 23, 2016. One of the Agency's recommended orders was to suspend parental visits pending the next hearing, as visitation between Alfred and his parents was detrimental.
The past six months had been an intense time for the M.'s and Alfred. The M.'s took in a new foster daughter, who Alfred "absolutely adored." Alfred, however, was having difficulty adjusting to her presence. In addition, Alfred was acting out at school by running out of class, hiding, throwing tantrums, acting aggressively toward peers he perceived to be bullies, and failing to follow directions. While these behaviors had been consistent over time, the added pressure seemed to tax the M.'s. When there was progress in one setting, there was decompensation in another, which had been Alfred's pattern.
Alfred had a lot of support at school through PWP, but the more attention he got, the more his behavior escalated. At a November 7, 2016 Agency meeting, the team discussed the correlation between increased attention and services, and Alfred's negative behavior. The team agreed that Alfred was very intelligent and seemed to be manipulating the situation, and discussed the need for consistency and strong behavioral modification techniques to try to shape Alfred's behavior. The team determined to implement a "consistent behavior shaping plan" at home and in school to decrease "attention motivated" behavior. At a "504 meeting" held at the beginning of Alfred's second grade year it was determined that Alfred may qualify for special education services under his ADHD diagnosis, so a new assessment was being conducted.
The Agency was prepared for "an explosion of behavior" as the case moved forward and hoped for "a rapid resolution" of Alfred's negative behavior. Aside from his behavioral concerns, Alfred was a "very playful, helpful, funny, popular little boy [who] loves being a big brother." He loved his family, both biological and adoptive, and looked forward to remaining in his "forever home."
At the December 8, 2016 section 366.26 hearing, father's attorney brought up the issue of visits, saying they had been suspended since June. The juvenile court responded that it had not suspended them and it was father who was not exercising his right to visits. Father told the court that "they" told him to go to Sierra Vista, where he was told Sierra Vista had not received the referral, so it had been a "back-and-forth battle for months" with him trying to find out when he was supposed to see the boys. The court responded that he did not get visits at Sierra Vista. Social worker Brandt told the court that father had been offered therapeutic visits outside of the Agency due to a "verbal situation that happened in June[,]" and an "encumbrance was submitted and received."
County counsel added that the last approved case plan provided that visits could occur at either the Agency or an approved location. The Agency approved Sierra Vista for visits due to father's behavior that concerned the Agency enough for it to determine that an encumbrance was needed for father to visit at Sierra Vista. When father came to the Agency, Brandt referred him to Sierra Vista to set up visits. Father's attorney understood that Sierra Vista had not set up such visits.
Brandt explained that Mr. Rivas at Sierra Vista had confirmed that an encumbrance was received and father had been advised that if he had a problem setting up an assessment at Sierra Vista, either he or Sierra Vista could call Brandt to clarify the matter. Brandt had never received a phone call from Sierra Vista indicating father had shown up.
The juvenile court responded that it did not know "what happened at that visit," and normally a therapeutic visit is different than a supervised one. Brandt stated that Sierra Vista's role was to supervise, and the goal was to have the visits occur outside the Agency, which would be more beneficial to father and his son. County counsel thought the confusion might have come from its recommended order to suspend visits, which was based on the lack of visitation between father and Alfred, and Alfred's extreme emotional outburst after mother's last visit.
The juvenile court stated that it could not suspend visits without some proof of detriment, which it did not have. The court added that it needed the evidence right away because parents are entitled to visits unless there is a showing of detriment and there could be an issue of whether father really attempted to exercise therapeutic visits. The court advised father that he needed to communicate with Sierra Vista immediately to schedule an assessment so he could set up therapeutic visits, adding that it might be prudent to have therapeutic visits so there was another set of unbiased eyes. The court stated the assessment needed to be done immediately and if father chose not to participate in the assessment, "that will be on him."
As far as ongoing visits, the juvenile court stated it would need to continue the matter for proof of detriment, as it could not make an order for supervised or suspended visits unless it had some basis for doing so. The court set the continued hearing for December 19, 2016.
The Agency subsequently filed an addendum report that provided information concerning visitation. At the November 7, 2016 Agency meeting, PWP counselor Daniel Rice described an incident that occurred on November 4, the day after mother's last visit with Alfred. When Alfred was in the cafeteria, he had an emotional outburst without any apparent trigger. He laid under the lunch table, curled up in a ball, and began sobbing uncontrollably for several minutes. Alfred than pushed himself through the cafeteria while lying on his back using his feet, kicking the undersides of the tables as he went. Alfred continued to cry and remained emotional during his subsequent session with the counselor. Rice told the Agency team that this was very strange behavior for Alfred, but "it made sense" since he had seen mother the day before for the first time in several months.
Father had not visited or attempted to visit either boy during the past six months. Daniel Rivas, the program coordinator for the family maintenance and reunification program at Sierra Vista, reported that as of December 8, 2016, father had not come to the office and applied for supervised visits. While father stated the Agency never submitted the proper documents so he could go to Sierra Vista, an encumbrance was approved on July 15, 2016.
Before this reporting period, the visits were consistent and seemingly beneficial to the boys and parents. Brandt advocated for the parents to continue with the visits even when the parents were late, as they had struggled to be on time during their entire involvement with child welfare. In Brandt's opinion, the inconsistency added an "additional layer . . . of emotional turmoil." Alfred had been struggling emotionally and behaviorally, and the disappointment from missed visits seemed to intensify his behavioral problems and ability to recover. Alfred did not seem to notice a missed visit because visits had been inconsistent.
It was also noted that since the last report, Alfred's caregiver had to call law enforcement due to escalating behaviors in the home, including physical aggression and Mrs. M. being locked out of the home. An Agency team meeting was scheduled for December 12, 2016, to discuss how to support the family and develop a behavioral plan.
At the December 19, 2016 hearing, County counsel stated the Agency's position was to suspend visits, as father was not visiting at all and mother's visits were inconsistent. Alfred's attorney asked that visits remain the same, except for having them in a therapeutic setting, since there was no showing of detriment. Mother's attorney argued there was insufficient evidence of detriment, since it was not known what triggered Alfred's outburst. Father's attorney had a series of emails between "Mr. White" and Brandt pertaining to "special visits" that were supposed to be set up with "some sort of special accommodation." In addition, father had called many times to try to set up visits, but was unable to do so. Father's attorney asked that visits not be suspended, as father was trying to get visits.
The juvenile court did not have evidence that visits were detrimental, but thought it prudent to schedule therapeutic visits so there would be "another set of eyes to know exactly what is going on[,]" as there was a concern that something inappropriate might be going on during mother's visits. For Alfred's benefit, the court was not going to suspend visits, but ordered monthly visits to occur in a therapeutic setting. Mother was ordered to arrive an hour and a half before the visit. The juvenile court refused to continue the hearing pursuant to section 366.26, subdivision (c)(3), as it could not find that there were no available prospective adoptive parents since the M.'s had been present at every hearing, and instead simply found good cause to continue the hearing for six months. The court set a contested hearing for June 13, 2017. The updated case plan stated that the parents were to receive a minimum of one therapeutic visit per month with Alfred at Sierra Vista, and they were required to arrive one and a half hours before the visit in order for the visit to occur.
Under section 366.26, subdivision (c)(3), if the court finds (1) that termination of parental rights would not be detrimental to the child, (2) the child has a probability for adoption but is difficult to place for adoption, and (3) there is no identified or available prospective adoptive parent, the court may identify adoption as the permanent placement goal and, without terminating parental rights, order that efforts be made to locate an appropriate adoptive family for the child within a period not to exceed 180 days.
A few days later, the juvenile court granted the Agency's application for Alfred to be administered psychotropic medication. The M.'s told Brandt that Alfred's behavior had worsened and he was transported to the hospital on December 13, 2016, for a "51/50" evaluation after having a significant emotional and behavioral meltdown. Alfred could become aggressive, such as biting, throwing items, stabbing people with pencils, and destroying property. Alfred's treating psychiatrist had proposed that Alfred be administered Vyvanse based on his diagnoses of "ADHD, combined[,]" in September 2016, but Brandt waited to submit the application to the court because she and the public health nurse wanted to see if behavioral techniques would minimize Alfred's symptoms. When his symptoms continued to increase, however, Brandt believed the court should explore the option of medication.
William's January 2017 Review Hearing
In a report prepared for William's January 20, 2017 section 366.3 review hearing, the social worker recommended that William remain in long-term foster care. William was making "great progress" on his Individualized Educational Plan (IEP) goals, and while he had expressed frustration at school because he had a new teacher, overall the school and Brandt were pleased with William's growth and progress. William had a one- on-one aide because he would escape or attempt to escape from his home, but there was a request to begin tapering off this service as William was no longer attempting to leave the home.
William had two visits with mother in the past six months and none with father. Brandt reported that this period had been "very calm" for William; he had settled into school and was stable both at school and at home. There were times, however, that he became emotional after visits or when he was extremely frustrated, but he would rebound quickly. At the end of December 2016, a maternal aunt, who lived in the State of Washington, asked for placement of William. The social worker spoke with the aunt and believed she may be a "wonderful placement" for William, and the Agency was in the process of requesting an ICPC assessment with the State of Washington for William to be placed with her. On January 13, 2017, the juvenile court granted the Agency's motion for approval of an ICPC assessment of the maternal aunt. The attached case plan contained a visitation schedule for the parents of a minimum of one supervised therapeutic visit a month with William at Sierra Vista.
Subsequent references to dates are to dates in 2017 unless otherwise noted.
At the January 20 review hearing, the juvenile court stated it was "distressed" to read that father had not been visiting William. Brandt responded that the visits had not yet occurred. A clinician at Sierra Vista told Brandt that father had initiated an intake appointment at Sierra Vista, but Brandt did not know if a visit had occurred. The juvenile court admonished Brandt that there needed to be follow up and if father had done what was required of him, the Agency had to ensure the therapeutic visits could occur. Father's attorney added that father was frustrated about visits being denied "time and time again." Father was trying to do everything he could to make them happen, but somehow there were always obstacles and he "really, really would like to see his son." The juvenile court responded that the issue had been addressed. The parties submitted on the report and the juvenile court approved and adopted the Agency's recommendations and the case plan, and set a section 366.3 review hearing for July 13. The juvenile court advised father to stay in contact with Brandt and his attorney so the visits could occur.
The Section 388 Petitions
In March, the Agency filed two separate section 388 petitions for the boys by which it sought to suspend parental visits and, in William's case, to assign his educational rights to an educational surrogate. Both petitions alleged as changed circumstances that on March 16, Brandt received messages father sent to his daughter, Emily, in which he stated he was going to get the boys back and take them home. In addition, mother had not visited the boys since November 2016 and father since June 2016, and father had a history of "concerning statements," such as that his children would be better off dead and references to Timothy McVeigh when speaking about the dreams he had pertaining to the Agency. A contested hearing on the petitions eventually was set for May 5.
In an addendum report prepared for the hearing, the Agency recommended suspension of parental visits. Brandt stated that in June 2016, she was talking with father about his anger toward child welfare while in the Agency's lobby waiting for a visit. At the beginning of the conversation, father told Brandt that when a friend told him he should be happy that his children were safe and alive, he told his friend, "My children would be better off dead, at least I would only have to mourn them once." Towards the end of the conversation, father put his head in his hands and said "you don't know the dreams I have had Keri, you just don't know the dreams I have." He then mumbled two or three words under his breath and also referenced Timothy McVeigh, the Oklahoma City Bomber. Brandt ended the conversation and filled out reports with the risk management team. It was decided that rather than have visits supervised with security present, which would require security to follow father whenever he was on the property and have him go through metal detectors upon entering the building, another venue would be more supportive of family visits. Within one week of this incident, an encumbrance and referral were made to Sierra Vista. When father was told of this, he was "emotional with gratitude" and thanked Brandt.
Father had been claiming since June 2016 that he had not set up his visits at Sierra Vista because the Agency did not refer or encumber for services, but the encumbrance and a letter from Dan Rivas were on file with the court that indicated the Agency had provided all necessary documents. Instead, father did not go to Sierra Vista to set up visits.
At the end of January 2017, father went to Sierra Vista to start the intake so therapeutic visits could begin. Berenice Sanchez with Sierra Vista conducted the intake, which was completed in February, and the case was assigned to her. Sanchez told Brandt that father made an appointment to talk with her on March 21, but Brandt told Sanchez father was not encumbered for individual therapy. On March 21, Brandt received an email from Sanchez that indicated the appointment was in fact a visit, but the boys were not present so the visit was rescheduled to March 28. On March 28, Brandt received Facebook messages between father and his 12-year-old daughter Emily, who was in a probate guardianship through Sacramento County. The messages alarmed Brandt due to father's claims that the boys were coming home, and he had a home and was going to put his family back together.
In the Facebook messages, father stated: "it is time to put my family back together I just need you to come home Emily"; "I'm getting the boys back"; he had not seen Emily because Shelly "has been keeping you from us" and Emily was there only because "I was not in a position to take care of you but I am now"; and when Emily replied that if he tried to get herself or the boys back that would be called kidnapping, father answered, "Well I guess I'm going to be charged with conspiracy to commit kidnapping."
Brandt met with Alfred on April 20 and asked him if he wanted to visit his parents. Alfred immediately responded "No," and offered to say why. He said that he already had his "final visit" because "the last time I saw my mom and dad they were crying and told [me] that this was their last visit." Alfred did not want his parents to know that he did not want to visit them, but he did want them to know "I love them and I miss them, but I am happy, and I love these people too." As of April 28, father had not seen the boys for about 11 months and he went seven months without expressing interest in visiting them, while mother had not seen the boys for seven months and had not expressed interest in visiting them.
The Hearing on the Section 388 Petitions
The contested hearing on the section 388 petitions took place over three days in May, concluding on May 12. County counsel made an offer of proof that Brandt would testify father was notified by July 1, 2016 that he had to go to Sierra Vista to set up visitation, yet he did not apply for visitation until December 14, 2016. County counsel submitted on the report, as did the boys' attorney, who supported the Agency's request. Mother's attorney made an offer of proof that visits had been difficult for her due to her income and housing situation, and objected to suspension of visits.
Since the only issue on appeal regarding the section 388 petitions is visitation, we omit the evidence presented concerning the parents' involvement in William's IEPs.
Father testified he last visited the boys in June 2016 and Brandt told him the next month that his visits were taken away because he "made threats" during the conversation in the Agency's lobby in June 2016. Father denied making any threats or that he said he thought his children would be better off dead; instead, he thought his children "would be best brought home."
Father admitted he made a comment about Timothy McVeigh, but claimed he merely repeated a conversation he had with another gentleman. Father said he was telling Brandt of his personal feelings about what he was going through when he told her another gentleman had said he felt like he had been "pushed with nothing left to lose" and mentioned Timothy McVeigh, adding "that's what the guys from Oklahoma City did. They were men with nothing left to lose, and that was the choices they chose." Father said Brandt walked away before he could finish the conversation. Father did not tell Brandt that he intended to harm the Agency, or harm or kidnap his sons, and he denied harboring any such intentions.
After Brandt left the lobby, he visited the boys. The visit was normal and loving. When he went to Agency for his visit two weeks later, the "visitation people" told him he would not have a visit that day. Father called Brandt from the Agency's lobby; she told him he needed to go to Sierra Vista. Father told her he could not believe she was doing this and asked why he could not see his children. Brandt did not tell father why he was not having a visit that day or give him any instructions.
Two weeks later, father called the Agency to confirm whether he would have a visit that day and was told there would not be one. He did not speak to Brandt until mid-August, when he asked her why he was not having visits. Brandt told him visits needed to be set up at Sierra Vista, but she would not tell him why. Father claimed he contacted Sierra Vista multiple times. He first contacted them in August, but was told no referral had been made. Father called the Agency the same day and left a voicemail message for Brandt telling her there was no referral. He spoke to Brandt a couple days later; she said that no referral was needed and he should just go there. Father went back to Sierra Vista and a "back-and-forth" battle ensued until he finally spoke with Daniel Rivas just before Christmas. Rivas told him he needed to apply for an intake, which father did.
After he completed the application, he received an intake appointment from Sierra Vista that was set for a month and a half later. At the conclusion of the intake, he was told a clinician would be assigned to him within two weeks. Father called Sierra Vista almost every day asking when he would get a clinician, but he was not assigned one until March 2017. He met with his clinician, Berenice, twice in March for therapeutic visits with the boys, but the visits did not occur. Father denied that he had a plan to kidnap the boys.
Father admitted the messages attached to the Agency's report were a conversation between himself and Emily on Facebook Messenger, which he claimed occurred over a two month period. Father, however, did not believe he was communicating with Emily throughout the entire conversation. Father admitted writing, "Well I guess I'm going to be charged with conspiracy to commit kidnapping" on March 14, but when he wrote it, he believed he was talking to Emily's guardian, Shelly. By this statement, father said he was referring to when Rivas told him that Brandt canceled his visits because he was conspiring to kidnap his children. When he wrote "I'm getting the boys back" and he was in a position to take care of the children now, he meant that the boys and Emily were going to live with his sister-in-law, who was applying to adopt the children; he was not referring to his own situation.
Father did not object to having therapeutic visits, as long as he could see "my kids." He denied ever showing up to a visit under the influence or with a weapon, and he had never physically threatened or assaulted anyone during a visit. When he told Brandt she did not know the dreams he had, he did not intend to communicate he had dreams of committing violence. Father said his dreams were of him doing things with his boys; when he awoke, he was sad because the dreams were not real.
Father confirmed he had not seen the boys in nearly 11 months, but denied he went seven months without expressing an interest in seeing them. He testified he "constantly" told Brandt he wanted to see his children up to the date she told him he needed to go to Sierra Vista. Between January and May 2017, he contacted Sierra Vista about his visits at least once a week. He completed the two hour intake with the clinician and an orientation before March 21. Father wanted his twice monthly visits reinstated.
Brandt testified that father visited the boys regularly between April 2015 and June 2016, and the quality of the visits was good. During that period, father consistently complained to her about having been dealt an injustice in this case. Brandt filed the section 388 petitions because father's behavior and statements concerned her and the Agency.
In June 2016, father was venting in the lobby, which he often did because he was upset about the case and had numerous concerns. Brandt was talking alone with father when he told her about a conversation he had with his friend, in which the friend told him he should be grateful his children were safe and alive, to which father responded, "My children would be better off dead. At least I would only have to mourn them once." Father had never previously made statements pertaining to his children's safety or that he wished them harm. By the end of the conversation, father had his head in his hands and was "kind of swaying his head back and forth," which was when he referenced the dreams and started to mumble. Brandt could not see his face, so she did not know all of the words he said until he referenced Timothy McVeigh. Brandt ended the conversation and told father why.
Due to the nature of father's comments, Brandt filed a "Near Miss" report with the Agency, which is a report of a threat of violent conduct which could easily occur. The risk management team told Brandt that in that situation, Agency protocol for visits was to have security shadow father when he arrived on Agency property, and when he entered the building, he would go through metal detectors and security would monitor him during visits.
Brandt spoke with father about how future visits would be set up. Brandt gave him two options - either he would be subjected to Agency policy or visits could be moved to a neutral location, like Sierra Vista, and they could ask for therapeutic visits. Brandt believed the second option would be more beneficial for the family. Father told Brandt he was happy to have visits at Sierra Vista, so he chose that option. Brandt did not give father any reason to return to the Agency two weeks later for a visit, as she advised him if he returned to the building, he would have to be supervised by security. Brandt believed he was permitted in the building only once since the June 2016 visit, to sign an IEP.
To set up visits at Sierra Vista, Brandt was required to submit a form to Sierra Vista and file an encumbrance, which is the financial document that permits the Agency to pay Sierra Vista for the therapeutic services. As shown in a document entitled "Encumbrance Request," a request for therapeutic visits was submitted on July 11, 2016, and approved on July 15, 2016. The approval allowed father and mother to set up visits. Father, however, had not had any therapeutic visits because he did not follow through until late December or early January.
At the July 2016 review hearing, father was very upset and said he went to Sierra Vista, but he was not able to see the boys because the referral was not there. Brandt immediately contacted Rivas, who confirmed he had all the appropriate documents and they were ready to go whenever father sought services. On December 8, 2016, Rivas wrote Brandt and informed her that father had not yet come to Sierra Vista to request an intake appointment. Between July and December, Brandt received one voicemail from father, in which he stated he was having a hard time setting up visits. Brandt advised him that she confirmed twice that everything needed to begin visits was in place.
Father did not have a visit on March 21 because Brandt did not arrange transportation for the boys, as Sierra Vista did not tell her a visit had been scheduled. Brandt was aware another visit had been scheduled for March 28, but it did not take place because she received the Facebook messages from a caregiver in the case.
Brandt brought the matter before the court because the content of the messages troubled her, namely father's "adamant claims" that he was going to get the children back despite repeatedly telling Brandt that he was homeless and could not provide for the children. Brandt thought father was talking about potentially kidnapping Emily and bringing the children back to a home that father told her he did not have. Brandt explained that since father was "extremely far" from being able to get the boys back, as reunification services had been terminated and one boy was on track for adoption while the other was on track for an ICPC move out of state, she was worried about father's intentions, especially in light of the statements he made in June 2016.
Brandt did not feel therapeutic visits were sufficient to protect the boys because the whole interaction is not supervised, as they have to leave the building and go into the parking lot. Due to Brandt's concern about father's instability, she did not want to deliver the boys into a potentially dangerous situation until the court had the opportunity to evaluate it. Even if the issues of the boys' transportation, arrival and departure could be addressed, Brandt did not feel therapeutic visits were safe because Alfred said he did not want to visit and father's instability added an element of danger. Brandt believed that father was unstable based on his continuous statements such as "I have got nothing to lose. My children would be better off dead. You have ruined a 30-year family . . . My children are coming home. I'm getting them back[,]" yet he was "far away from that reality."
Father's temperament had changed since the case began - he previously would never have made these types of statements. In Brandt's opinion, father's statements, his disconnect from the boys as shown by going from consistently visiting to not visiting at all, his continually asking when he was going to see his children when he knew how to see them but did not follow through, and his messages attached to the addendum report, were "very dramatic" and extremely troubling to her and the Agency. Based on this, Brandt had a multitude of concerns, such as that he would harm the children or the Agency, or kidnap the children. Father had never harmed Brandt and she did not have any information that he had ever harmed his children. Brandt did not doubt that father loved his children.
Brandt's recommendation would not change if father saw a therapist who determined he did not pose a threat to the Agency or the boys because she did not think a therapist would be able to make that determination in a couple sessions given father's diagnosed personality disorder. The personality disorder Brandt was referencing was father's diagnosis of an Axis I adjustment disorder NOS and Axis II personality disorder NOS in May 2006. This diagnosis was a part of the reason she decided to file the section 388 petitions.
Brandt did not think there was any benefit to Alfred maintaining a relationship with his parents given that the section 366.26 hearing had been set, he was in a potential adoptive home, and he was "very adamant" that he did not want to visit them. Father's regular statements about the case being an injustice to him, coupled with his Facebook messages and statements about Timothy McVeigh and that his boys would be better off dead, concerned Brandt because father had not taken responsibility for the current situation and instead blamed the Agency. Brandt's concern about the boys' safety given father's statements applied equally to William; the only difference for him was that she could not get his opinion since he was "nonverbal autistic." In addition, given that William was on a permanent plan that did not include return to his parents, she did not think there was any benefit to him in continuing his relationship with his parents at that time.
Brandt had spoken with father a handful of times since he made his June 2016 statements. Father never apologized for making the statements or denied that he made them; instead, he minimized them. Father never made it clear that he did not intend to kill the boys or otherwise "deny his intent." Father's statements made Brandt worried about his mental decompensation. He seemed very angry.
Alfred's behavior the day after mother's visit in November 2016 was not the first time he had a negative reaction after a visit, but it was the most severe. Brandt would have "severe concerns" about Alfred's reaction should visits with either parent resume, given his reaction following the November visit and his statement that he did not want to visit. She had similar concerns should visits with William resume. His school reported they knew when a visit did not take place because William would have a negative response that would start at home and cross over into school. He would become more emotional and aggressive, and bite and scratch. William behaved this way after a visit occurred, but it was worse when visits were missed. Brandt had a significant concern should visits resume due to the parents' prior inconsistency with attendance at visits. While father was fairly consistent in showing up to visits, if he was late to a visit, the visit did not occur.
Daniel Rivas, the program coordinator for Sierra Vista's Adult and Community Services, testified that he had direct interactions with father when father was trying to get his visits. Father was first referred to Sierra Vista for visits in July 2016; the referral was received on July 15, 2016. Father was directed to come and fill out an application, which he did on December 14, 2016. According to Rivas, father did not come to Sierra Vista to apply for visits between July and December 2016. If father had come in earlier, he would not have been turned away and his intake would have occurred sooner.
Father's intake was on January 11, 2017. After an intake is completed, a clinician is assigned to the case, who arranges with the social worker when services will start. Father was assigned a clinician in early February. When asked why it took so long to assign a clinician, Rivas responded there may have been a delay because he was waiting for clarification on the particulars of the visits, as they do not get therapeutic visits very often. Rivas was aware that a visit was scheduled around March 21, but the visit did not take place because there was some confusion between the clinician and social worker. Father was upset that the boys were not delivered for the visit, but he did not threaten anyone. A replacement visit scheduled for March 28 did not occur because the social worker reported some behavior by father that indicated visits were not going to proceed at that time.
The juvenile court asked the M.'s if they had anything to add. Mr. M. responded it was up to Alfred whether visits occurred, as they were open to whatever he wanted. Alfred, however, had told them that he was happy where he was and he did not want any more visits.
After hearing oral argument, the juvenile court granted the petitions with respect to the assignment of educational rights and visitation. As to suspension of visitation rights, the juvenile court found there was a significant change of circumstances based on the parents' failure to visit either boy for a substantial period of time, along with the facts that Alfred was on the eve of a section 366.26 hearing and he stated he did not want to visit his parents. The juvenile court suspended mother's visits, finding them to be detrimental and not in the boys' best interests based on Alfred's significant behavioral issues following his visit with mother, mother's failure to visit William for a significant period of time, and the emotional confusion to the boys if visits were suddenly reinstated.
As for father's visits, the juvenile court explained that father's threats and reference to Timothy McVeigh must be taken very seriously. The court did not accept father's testimony that he was just repeating what someone else said about Timothy McVeigh, as it did not make sense to bring up something someone else said concerning such a tragedy. While the court recognized that everyone sometimes loses their "filter," father minimized his statement and never apologized, which is what a reasonable person would do. Father never denied making the statement, even in court; instead, "[t]here was more minimization as far as why those statements were made."
The juvenile court thought it relevant that father had mental health issues when the matter first came before the court, noting the parents had not done well. With father's prior mental health diagnoses and his statements concerning kidnapping, Timothy McVeigh, and that his children would be "better off dead," the court "had no problem whatsoever" finding it would be physically and emotionally detrimental to allow ongoing visits between father and the boys. The juvenile court granted the section 388 petitions.
The June 2017 Section 366 .26 Hearing
In its report prepared for the section 366.26 hearing, the Agency recommended termination of parental rights and adoption as Alfred's permanent plan. The M.'s remained "very committed" to Alfred. While Alfred's behaviors had diminished to a place where the M.'s felt confident they could support him, they hoped to continue with supportive services. Brandt stated it was very likely Alfred would be adopted due to the M's "strong commitment" to him and his commitment to the family.
Alfred, who was now eight years old, had completed the second grade. Academically, he performed above average in his classroom when he chose to complete his work. At his last IEP in March 2017, it was decided to increase Alfred's one-on-one staffing, as he was not focusing in class. The IEP team discovered that Alfred was manipulating the reward system established for him, so they decided to restructure the system. Upon implementation of the IEP and intense behavioral plan, Alfred had done significantly better in school, although he still struggled with focus and attention. He was working with his family and the mental health team to address the focus issues.
Alfred was seeing a clinician and receiving services through Aspiranet PWP, through which he had a support counselor, as well as clinical services to address emotional and behavioral needs as they arose. Alfred had a pending application for a medication change, as his current medication was not very helpful at the time and seemed to cause increased anxiety.
On June 5, the Agency filed a report on Alfred's psychotropic medication, which stated that the M.'s reported that while Alfred's behavior had become more manageable, as he was less impulsive and could be redirected, he had increased anxiety associated with the medication. Therefore, the M.'s had collaborated with the doctor and an application for a medication change was pending before the court.
The social worker stated that Alfred had begun to stabilize. While at first Alfred's negative behaviors had worsened, Alfred had a new clinician who was skilled in teaching the M.'s strong behavioral techniques to extinguish some of his more intense negative behaviors. The M.'s had more parental power and skills to be able to better parent and redirect Alfred. Alfred was "an extremely intelligent young man" who was "rather adorable and engaging," which characteristics he had used to manipulate adults, including school personnel. In the fall of 2016, the social worker asked mental health services to focus on the home and allow the school to implement the IEP. Since November 2016, when the IEP was implemented, Alfred's inappropriate behaviors at school had gradually deescalated. Every staff member who was working with Alfred had been trained in his specific behavioral plan, which reduced the risk of manipulation and that Alfred would be rewarded for inappropriate behavior. While Alfred's behavior could sometimes be challenging, the M.'s felt they had a grasp on his parenting, emotional, and medical needs.
Alfred was excited about being adopted and had been signing his adoptive name on forms for some time. Alfred and the family had decided that his name would be changed. The social worker recommended the court move forward with adoption proceedings.
Attached to the report were some of Alfred's school records, including two official notices of suspension, dated December 13, 2016 and February 7, 2017. Alfred was suspended for three days in December 2016 when he physically injured the school nurse by biting her twice, pinching her, and kicking her in the knee. In addition, Alfred completely trashed the nursing office. The sheriff and mental health services were called. The sheriff was unable to redirect Alfred and had to transport him and the school nurse to the emergency room. Alfred was transferred to San Joaquin Mental Health, but he calmed down by the time he reached the facility and was released to the M.'s. In February 2017, Alfred was suspended for two days because he got angry and "threw a fit" when he was supposed to open his book; he threw two desks, multiple chairs, dumped supplies, and hit the principal.
Although the parents were present in court in the morning when the section 366.26 was scheduled to be held, they were not there when the case was finally called in the afternoon due to the court's heavily-impacted calendar. County counsel and Alfred's attorney submitted on the report. Mother's attorney made an offer of proof that mother would testify that she loved Alfred very much and while she did not want her parental rights terminated, she knew he was in a good home, although she wanted some type of contact with him. Father's attorney also made an offer of proof that father would testify he loved Alfred very much, he was "absolutely heartbroken by this outcome," and he wanted a final visit with Alfred.
The juvenile court thanked the M.'s, who were present, telling them it very much appreciated their "being constants and supportive" of Alfred, and while it was appalled that Alfred had been in 11 placements and recognized it had "been a difficult road," the court was very glad the M.'s had been "at the end of the road for him." The juvenile court found by clear and convincing evidence that it was very likely Alfred would be adopted, noting there was no evidence to the contrary. The court ordered adoption as the permanent plan, terminated parental rights, and denied father's request for a final visit. County counsel informed the court that the psychiatric medication for which the court was conducting a medication review was going to change and another application for psychotropic medication was going to be submitted. County counsel asked the court to continue the medication orders until it authorized a new medication. The court granted the request.
DISCUSSION
Visitation
Father contends the Agency failed to meet its burden of proving that circumstances had changed such that it was in the boys' best interest to terminate his visits with them.
A juvenile court dependency order may be changed, modified, or set aside at any time. (§ 385.) Any person having an interest in a dependent child, including the Agency, may petition the court for such a modification on the grounds of change of circumstance or new evidence. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 414-415.) When a section 388 petition seeks to modify a prior order granting visitation to one terminating visitation, the juvenile court is required to find that visitation would be detrimental to the minor before granting the petition and terminating visitation. (In re Manolito L. (2001) 90 Cal.App.4th 753, 758-760 (Manolito L.).)
The burden of proof at a hearing on the petition is on the moving party to show by a preponderance of the evidence both that there are changed circumstances or new evidence, and a change in court order would be in the child's best interest. (§ 388, subd. (b); In re D.B. (2013) 217 Cal.App.4th 1080, 1089 (D.B.).) Where, as here, the petition seeks termination of visitation after reunification has ended and long-term foster care has been ordered, the standard of proof on such a petition is by a preponderance of the evidence. (Manolito L., supra, 90 Cal.App.4th at pp. 760-762; D.B., supra, 217 Cal.App.4th at p. 1091.)
Whether the juvenile court should modify a previously made order rests within its discretion, and its determination may not be disturbed unless there has been a clear abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318 (Stephanie M.).) The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court. (Id. at pp. 318-319.)
We do not find an abuse of discretion here, as there is sufficient evidence from which the juvenile court could conclude that continued visitation would be detrimental to the boys. The evidence shows that in 2006, father was briefly involuntarily committed and diagnosed with adjustment and personality disorders. Father's mental health was reassessed as part of his reunification services in this case and the assessment, which was completed in July 2014, confirmed a diagnosis of an adjustment disorder with disturbance of emotions and conduct. The marriage and family therapist recommended he complete a 16-week anger management program, noting that father expressed frustration and anger toward the child welfare process, did not take any responsibility for his actions that led to the Agency's involvement, and fixated on the perceived injustices of the case. Father had difficulty completing the assessment and when asked about his anger, father responded that he felt angry because the Agency stole his children. Father never attended the anger management program, as his reunification services were terminated.
Over the next two years, father's visits with the boys were good when they occurred, but his inconsistent attendance led to emotional difficulties for both boys. According to Brandt, during this period father consistently complained to her about the injustices being perpetrated on him, thereby exhibiting signs consistent with his mental health diagnosis, but he was not an apparent danger or threat. It was in June 2016 that Brandt observed a noticeable change in father's demeanor and behavior, when he told Brandt that the boys "would be better off dead[,]" and mumbled something about Timothy McVeigh. Father had never made such statements before, which demonstrated that father's thought processes put the boys in danger.
Even so, Brandt made arrangements for visits to continue by having them take place at Sierra Vista. Brandt told father why the visits needed to either be closely supervised at the Agency or moved to Sierra Vista, and father agreed to the latter. While Brandt told father what he needed to do to begin visits at Sierra Vista, father did not apply for an intake appointment until five months later. Before visits resumed, however, Brandt received the Facebook messages between father and Emily. In those messages, father stated that he was "getting the boys back[,]" and when Emily stated that if he tried to get either herself or the boys back "it's called kidnapping[,]" father responded that he guessed he would "be charged with conspiracy to commit kidnapping."
Based on this evidence, the juvenile court reasonably could find that the boys were at risk of physical and emotional harm if visits with father were to continue. Father's untreated mental health issues, coupled with his statements concerning kidnapping, Timothy McVeigh, and that the boys would be "better off dead[,]" placed the boys at risk of harm should father seek to carry out his threats or to verbalize them in front of the boys. While father asserts that there is no evidence he ever endangered the boys or the Agency, the court did not have to wait until father acted on his statements before suspending his visits. Moreover, father had a history of visiting inconsistently, which caused both boys emotional distress. Given that the boys were moving toward permanent placements, and Alfred in particular was having difficulty otherwise controlling his behavior, it was in the boys' best interests to promote their stability by suspending father's visits.
In his briefs, father paints a picture of an Agency bent on preventing contact with the boys by tampering with and restricting his visits after June 2016. He asserts that had the Agency truly believed he posed a threat due to his comments about Timothy McVeigh, the Agency should have sought a civil restraining order rather than punish him by unilaterally curtailing his contact with the boys by requiring him to go to Sierra Vista for visits.
In this appeal, however, we are not reviewing whether the Agency acted properly in deciding to offer visits to father at Sierra Vista after the June 2016 comments. Had father believed the Agency's action was improper, he could have sought juvenile court intervention or brought the matter to the court's attention at the July and August 2016 review hearings. Instead, he did not raise the matter until the December 2016 section 366.26 hearing, at which time the juvenile court ordered therapeutic visits at Sierra Vista, or appeal from that order. Our review here is confined to whether there is sufficient evidence to support the juvenile court's finding that continued visitation with father would be detrimental to the boys. As such, the Agency's prior actions or motives are irrelevant to our analysis.
Father contends that his failure to apologize or retract his statement concerning Timothy McVeigh does not justify the juvenile court's decision to stop his visits. He asserts that his failure to apologize cannot be held against him because that would force him to confess to a statement he claims he never made. As the juvenile court noted, however, father admitted at the hearing that he mentioned Timothy McVeigh, but he attempted to minimize the statement by testifying it was made in a different context. Although father was advised his visits were being changed due to that reference, father did not tell Brandt that he did not mean it or deny his intent. The juvenile court was within its province to reject father's testimony that he was merely repeating what someone else said and instead accept Brandt's testimony that father mentioned Timothy McVeigh on his own.
Father asserts that the Agency had no factual support for its position that his mental health endangered the boys, such as professional testimony on father's current mental health or any risks arising therefrom. The evidence before the juvenile court included father's past mental health history, that included an adjustment disorder first diagnosed in 2006 and reconfirmed in 2014; father's failure to obtain recommended anger management treatment for that condition; and father's statements to Brandt in June 2016 and his Facebook messages in 2017. As we discussed, this evidence was sufficient to show detriment. Father did not challenge his mental health assessments at the contested hearing or present his own evidence regarding his mental health. Therefore, the Agency's evidence went unchallenged. Moreover, we would find detriment even if father did not have a diagnosed mental health condition, based solely on his statements that the boys would be better off dead and that he might kidnap them.
Contrary to father's assertion, the Agency showed circumstances had changed since father made his June 2016 statements as evidenced by his 2017 Facebook messages and the facts that Alfred was on the eve of a section 366.26 hearing and did not want to visit his parents. Father also asserts there is no reason why it would serve the boys' best interests to suddenly stop parental visits. As we have explained, it was in the boys' best interest to promote their stability as they moved toward permanent placements by suspending father's visits.
Father essentially asks us to view the evidence in a manner favorable to him. This we cannot do. Where two or more inferences can reasonably be deduced from the facts, we have no authority to substitute our decision for that of the juvenile court. (Stephanie M., supra, 7 Cal.4th at p. 319.) The evidence here showed that father presented a risk to the boys' physical and emotional health. In arguing to the contrary, father points to evidence that the boys had positive experiences during visits. Although we recognize that the visits included positive interaction between the boys and the parents, we cannot say, in light of all the evidence, that the juvenile court's order terminating further visits exceeded the bounds of reason. (Id. at p. 318.)
Adoptability
Father contends there was insufficient evidence to support the juvenile court's finding that Alfred was likely to be adopted within a reasonable time.
"Once [the juvenile court] sets a hearing pursuant to section 366.26 to select and implement a permanent plan for a dependent child, the [Agency] must prepare an assessment, frequently referred to as an adoption assessment. Such an adoption assessment provides the information necessary for the juvenile court to determine whether it is likely the child will be adopted and to consequently order termination of parental rights." (In re G.M. (2010) 181 Cal.App.4th 552, 559 (G.M.), citations omitted.) The assessment must include "[a] preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent." (§ 366.21, subd. (i)(1)(D).) "A child's current caretaker may be designated as a prospective adoptive parent if the child has lived with the caretaker for at least six months, the caretaker currently expresses a commitment to adopt the child, and the caretaker has taken at least one step to facilitate the adoption process. (§ 366.26, subd. (n)(1).)" (G.M., supra, 181 Cal.App.4th at p. 559.)
At a section 366.26 hearing, the juvenile court must determine by clear and convincing evidence whether it is likely the minor will be adopted. (§ 366.26, subd. (c)(1).) If the court finds a likelihood of adoption, the court must terminate parental rights absent evidence termination would be detrimental to the minor under one of the exceptions to adoption (§ 366.26, subd. (c)(1)(B)(i)-(vi)) that father does not argue are applicable here. (In re Celine R. (2003) 31 Cal.4th 45, 53.)
In determining adoptability, the juvenile court assesses the child's age, physical condition and emotional state and how these characteristics affect a prospective parent's willingness to adopt the child. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649 (Sarah M.).) "To be considered adoptable, a [child] need not be in a prospective adoptive home and there need not be a prospective adoptive parent ' "waiting in the wings." ' [Citation.] Nevertheless, 'the fact that a prospective adoptive parent has expressed interest in adopting the [child] is evidence that the [child's] age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the [child]. In other words, a prospective adoptive parent's willingness to adopt generally indicates the [child] is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family.' " (In re R.C. (2008) 169 Cal.App.4th 486, 491 (R.C.), italics omitted.)
In assessing adoptability, some courts have divided children into two categories: those who are "generally adoptable" and those who are "specifically adoptable." A child is "generally adoptable" if the child's traits, e.g., age, physical condition, mental state and other relevant factors do not make it difficult to find an adoptive parent. A child is "specifically adoptable" if the child is adoptable only because of a specific caregiver's willingness to adopt. (R.C., supra, 169 Cal.App.4th at pp. 492-494.) " 'When a child is deemed adoptable only because a particular caregiver is willing to adopt, 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.' " (Id. at p. 494.)
As a preliminary matter, we address the terms "generally" and "specifically" adoptable. In our view, identifying a child as "generally" or "specifically" adoptable obfuscates the adoptability issue before the juvenile court, as those terms are not mentioned in section 366.26, the statute governing termination of parental rights. Further, the juvenile court is not required to assess the general and specific adoptability of a child or make such findings. Instead, section 366.26 merely requires the juvenile court to determine if the child is likely to be adopted within a reasonable time. In other words, it requires the juvenile court to determine if the child is adoptable.
"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. [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.) Moreover, we review the record in the light most favorable to the juvenile court's findings, and draw all inferences from the evidence that support the court's determination. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1177.)
Here, the Agency opined Alfred was adoptable because the M.'s were "very committed" to Alfred, whose negative behaviors had diminished to a place where the M's felt confident they could support him. The fact that the M.'s wanted to adopt Alfred alone serves as evidence he was likely to be adopted within a reasonable time by his adoptive parents or some others. (Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.)
Father concedes the M.'s desire to adopt is some evidence of Alfred's adoptability but argues it is insufficient given the lack of evidence they were capable of meeting Alfred's needs. He asserts there is no indication the M.'s were ready, willing and able to proceed with Alfred's adoption as of the June 2017 section 366.26 hearing or within a reasonable time thereafter. He claims that instead the evidence shows the M.'s "were struggling to understand and control [Alfred], whose behavior had not stabilized despite the administration of psychotropic drugs[,]" and therefore they were not firmly committed to adopting Alfred regardless of his "unbridled aggressive and destructive behavior." He contends that it was premature to declare Alfred adoptable before he had stabilized.
The evidence shows, however, that the M.'s were committed to adopting Alfred. They were his de facto parents and designated as prospective adoptive parents, and attended all of the juvenile court hearings. As stated in the report for the June 2017 hearing, the M's were prepared to adopt Alfred and committed to caring for him until he reached adulthood. There is nothing in the record to suggest they had changed their minds. The continuance of the section 366.26 hearing did not appear to be the M.'s idea, but rather the social worker's, who believed it best to try to stabilize Alfred before proceeding to adoption. Thereafter, the M.'s worked with Alfred with the help of his clinician and the school, and his behavior improved, although it was still challenging at times. Contrary to father's assertion that the M.'s were struggling to understand and control Alfred, the M.'s felt they "ha[d] a grasp" on Alfred's parenting, emotional, and medical needs. Every indication at the section 366.26 hearing was that Alfred would be adopted by the M.'s within a reasonable time.
In arguing that Alfred had not stabilized, father points to an application for psychotropic medication that was filed after the June 2017 hearing, which asked the juvenile court to allow Dr. Mora to increase the Vyvanse for a few months and if that was not effective, to switch to either (dex) methylphenidate or guanfacine, as Alfred continued to have issues with defiance and was sometimes more aggressive. This evidence, however, was not before the juvenile court when it made the adoptability finding. Moreover, there is no indication from this application that the M.'s were less committed to adopting Alfred. To the contrary, Alfred saw Dr. Mora in April 2017, when the M.'s would have been aware of the medication issues, yet the M.'s still wanted to adopt him in June 2017. --------
To the extent father invites us to speculate whether the M.'s will be able to meet Alfred's future needs and whether their commitment to adopting him is reliable in the face of uncertainty, we decline. Rather, we prefer the commonsense view that "when there is a prospective adoptive home in which the child is already living, and the only indications are that, if matters continue, the child will be adopted into that home, adoptability is established. In such a case, the literal language of the statute is satisfied, because 'it is likely' that that particular child will be adopted." (In re Jayson T. (2002) 97 Cal.App.4th 75, 85.)
DISPOSITION
The May 12, 2017 order granting the section 388 petitions and the June 13, 2017 order terminating parental rights as to Alfred are affirmed.
/s/_________
GOMES, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
SMITH, J.