Opinion
D070307
12-08-2016
In re M.H., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. M.H., Defendant and Appellant.
Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. J517436C) APPEAL from a judgment of the Superior Court of San Diego County, Jean P. Leonard, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and Respondent.
I.
INTRODUCTION
M.H. (Mother) appeals a judgment terminating her parental rights to her minor daughter of the same name, M.H. (M.H.). Mother contends that the juvenile court erred in terminating her parental rights to M.H. because the record does not contain substantial evidence that M.H. is adoptable, as is required. (See Welf. & Inst. Code, § 366.26, subd. (c)(1) ["If 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"].) We conclude that there is substantial evidence in the record to support the juvenile court's determination that M.H. is adoptable, and affirm the judgment.
Unless otherwise specified, all subsequent statutory references are to the Welfare and Institutions Code.
II.
FACTUAL AND PROCEDURAL BACKGROUND
In light of the limited issue raised on appeal, we provide an abbreviated summary of the lengthy dependency proceedings.
A. The initial dependency period
In March 2012, when M.H. was 10 years old, the juvenile court declared M.H. a dependent of the court and removed her from Mother's custody. At the conclusion of a contested 18-month review hearing in November 2013, the juvenile court terminated Mother's reunification services and set a hearing under section 366.26 to select and implement a permanent plan. B. M.H.'s initial permanent plan
In a March 2014 section 366.26 report, the San Diego County Health and Human Services Agency (Agency) noted that M.H., who was then 12 years old, was placed in a foster home, where she had been living since December 2012. The Agency reported in a May 2014 addendum report that M.H. indicated that she did not want to be adopted. In an addendum report in September 2014, the Agency recommended a permanent plan of Another Planned Permanent Living Arrangement (APPLA). The court held a section 366.26 hearing in October 2014, and ordered APPLA as M.H.'s permanent plan. C. The April 2016 section 366 .26 hearing - the juvenile court's adoptability determination and termination of Mother's parental rights
We provide additional factual and procedural background related to the trial court's adoptability finding in section III.B, post.
The Agency placed M.H. with her maternal aunt (C.H.) and uncle in July 2015. In an October 2015 postpermanency report, the Agency noted that M.H. had informed the Agency that she had "changed her mind about her permanent plan and [that she] would now like to be adopted by [C.H.]" The Agency recommended that the juvenile court hold a new section 366.26 hearing in order to reassess M.H.'s permanent plan. The Agency thereafter filed a section 366.26 report in which it assessed M.H. to be both generally adoptable, and specifically adoptable by her aunt and uncle. In April 2016, the trial court held a new section 366.26 hearing, determined that M.H. was both generally and specifically adoptable, and entered a judgment terminating Mother's parental rights. D. The appeal
As discussed in part III.A, post, a minor is said to be generally adoptable as long as a minor's age, physical condition, or emotional state do not make it difficult to find a person willing to adopt the minor. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) A minor is said to be specifically adoptable where a "social worker opines that the minor is likely to be adopted based solely on the existence of a prospective adoptive parent who is willing to adopt the minor." (Id. at p. 1650.)
Mother appeals from the April 2016 judgment terminating her parental rights to M.H. E. Supplemental briefing and the Agency's appellate motions
On September 14, 2016, while this appeal was pending, this court sent a letter to counsel stating that it appeared to be undisputed on appeal that this court could affirm the juvenile court's order only if we were to determine that there is substantial evidence to support the trial court's determination that M.H. is likely to be adopted by her aunt and uncle. We further noted that the caregivers had yet to be approved as adoptive parents at the time of the juvenile court's termination of parental rights. In light of the foregoing facts, and thinking that reversal might be required if the caregivers were not approved for adoption, we requested that the parties submit supplemental letter briefs addressing the following question:
As discussed in part III.C, post, in its respondent's brief, the Agency conceded that the trial court erred in determining that M.H. is generally adoptable, but contended that the trial court's adoptability finding could be supported by the trial court's determination that M.H. is specifically adoptable by her relative caregivers. The Agency stated, "The Agency concedes the court erred in finding the child was generally adoptable given [M.H.'s] statements about adoption by strangers. However, the court correctly found the child was likely to be adopted since she was placed in a prospective adoptive home with relative caregivers who remained committed to adoption."
"Is there any 'postjudgment evidence [in this case that] stands to completely undermine the legal underpinnings of the juvenile court's judgment under review'? (In re Zeth S.[ (2003) 31 Cal.4th 396,] 414, fn.11.)"
On the same day that we issued our request for supplemental briefing, the Agency filed a motion to augment the record with a postpermanency planning review report dated September 8, 2016 and an addendum report also dated September 8, 2016. The Agency stated that the reports "show the relative caregivers remain committed to adoption and their adoptive home study was approved on August 20, 2016." Also on September 14, the Agency filed a motion for judicial notice requesting that this court take judicial notice of the juvenile court's September 8, 2016 minute order receiving the September 8 reports and confirming the permanent plan of adoption.
This court had not reviewed the Agency's motions at the time we issued our request for supplemental briefing.
On September 17, Mother's counsel filed a letter brief stating that there was no postjudgment evidence that undermined the legal underpinnings of the juvenile court's judgment. In her letter brief, Mother's counsel objected to the Agency's motions on the ground that "it is not proper for this Court to consider [the postjudgment] evidence . . . as it contains information that was not before the juvenile court at the time it made its findings related to adoptability."
The Agency filed a letter brief stating that there was postjudgment evidence that "supports affirmance of the juvenile court's decision, rather than a reversal," referring to the documents attached to its motion to augment and motion for judicial notice.
III.
DISCUSSION
There is substantial evidence in the record to support the
trial court's determination that M.H. is adoptable
In its motion to augment, the Agency states that "[i]f this Court were to find the juvenile court erred in finding the child adoptable, any error should be considered harmless" in light of the postpermanency reports demonstrating that the caregivers had been approved for adoption. (Italics added.) Similarly, the Agency contends in its motion for judicial notice "that if this Court were to find error, the error should be considered harmless," in light of the juvenile court's minute order accepting the postpermanency reports and confirming the plan of adoption. (Italics added.) In light of our conclusion that the trial court did not err in determining that M.H. is specifically adoptable, we need not consider these documents. Accordingly, the Agency's motion to augment and the Agency's motion for judicial notice are denied.
In its letter brief, filed in response to our supplemental briefing request, the Agency argues that the documents attached to its motion to augment and motion for judicial notice demonstrate that that Mother's appeal "has been rendered moot and should be dismissed."
We assume, for purposes of this opinion only, that the Agency's letter brief is a proper method by which to seek the dismissal of Mother's appeal. We acknowledge the existence of authority suggesting that postjudgment evidence demonstrating the approval of an adoption "home study removed any uncertainty that the grandmother would adopt [the minor]," (In re Salvador M. (2005) 133 Cal.App.4th 1415, 1422) and thereby rendered "moot" a claim premised on the uncertainty of the potential adoption. (Ibid.) Nevertheless, even assuming that we may consider the postjudgment evidence to which the Agency refers in its motions, that evidence suggests only that M.H.'s adoption by her aunt and uncle is likely, and does not demonstrate the mootness of Mother's claim that there is insufficient evidence to support the trial court's determination that M.H. is adoptable. Accordingly, we deny the Agency's request that we dismiss Mother's appeal.
Mother contends that the record lacks substantial evidence to support the trial court's determination that M.H. is adoptable. A. Governing law
A juvenile court must find by clear and convincing evidence that a child is likely to be adopted prior to terminating a parent's parental rights under section 366.26. (See § 366.26, subd. (c)(1); Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249-250.) " 'Adoption, where possible, is the permanent plan preferred by the Legislature.' " (In re D.O. (2016) 247 Cal.App.4th 166, 173.)
In In re G.M. (2010) 181 Cal.App.4th 552, 559, the court outlined the law governing the setting of a permanent plan of adoption:
"Once a court sets a hearing pursuant to section 366.26 to select and implement a permanent plan for a dependent child, the department must prepare an assessment [citations], 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 [citation] and to consequently order termination of parental rights.
"[T]he assessment must include '[a] preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent.' [Citations.] 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." (Ibid.)
"The question of adoptability posed at a section 366.26 hearing usually focuses on whether the child's age, physical condition, and emotional state make it difficult to find a person willing to adopt that child. [Citation.] If the child is considered generally adoptable, we do not examine the suitability of the prospective adoptive home. [Citation.] However, where the child is deemed adoptable based solely on the fact that a particular family is willing to adopt him or her, the trial court must determine whether there is a legal impediment to adoption." (In re Carl R. (2005) 128 Cal.App.4th 1051, 1061.) B. Factual and procedural background
The Agency filed a report in October 2015 recommending that the juvenile court hold a section 366.26 hearing in order to reassess what would be the best permanent plan for M.H. The Agency noted that in July 2015, M.H. was placed in the home of her maternal aunt, C.H., in Los Angeles, where she joined three younger sisters, who had also been placed in the home. M.H. subsequently informed an Agency social worker that she would like to be adopted by C.H.
The Agency filed a section 366.26 report in January 2016. The Agency noted that M.H. had been living with C.H. and her husband, M.H.'s uncle, since July of 2015. In assessing the likelihood of adoption, the Agency stated its opinion that M.H. was both specifically and generally adoptable. The Agency indicated that M.H. was specifically adoptable because C.H. and her husband wanted to adopt M.H. With respect to generally adoptability, the Agency stated that there were three families in San Diego County who had been approved to adopt and that were interested in adopting a child like M.H.
While the October 2015 report had not made reference to M.H.'s uncle, the February 2016 report was clear that the plan was for both C.H. and her husband, M.H.'s uncle, to adopt M.H. and stated that both C.H. and her husband were "motivated to adopt [M.H.] because she is their niece."
The report identified C.H. and her husband as prospective adoptive parents and provided an overview of their social history, an assessment of their motivation for seeking adoption, and a discussion of their prior relationship with M.H., among other information. The report stated that the couple had been married for eight years, but had been together since the late 1990s. Although both C.H. and her husband had criminal and child welfare histories, waivers had been granted in order to place M.H. with them.
C.H. and her husband wanted to adopt M.H. as well as her three younger sisters. They were "100% committed to the permanent plan of adoption." With respect to M.H., C.H. and her husband indicated that they " '[l]ove[d] her to death. She is a good kid.' " C.H. informed the Agency that she considered it her responsibility to care for M.H. since Mother was unable to do so. The Agency report also stated that C.H. and her husband had known M.H. since she was a baby and that M.H. and her family had lived with C.H. and her husband prior to M.H. and her siblings entering the foster care system.
C.H. and her husband believed that they were capable of meeting M.H.'s needs, noting that they had been caring for her in their home since July 2015. They understood the legal and financial responsibilities of adoption and were committed to making a lifelong commitment to M.H. Additionally, M.H. had expressed on more than one occasion that she wanted to be adopted by C.H. and her husband. M.H. explained to an Agency social worker that she wanted to be adopted by family and not by " 'some random white people.' "
The Agency's report concluded by stating that M.H. had experienced considerable instability in her life and that it would be in her best interests to receive the permanency that an adoption would bring. The Agency asked the court to terminate parental rights so that M.H. could be adopted.
A February 2016 report prepared by a Court Appointed Special Advocate (CASA) also recommended that M.H.'s permanent plan be changed to adoption.
The Agency filed an addendum report in February 2016 in which it discussed a recent referral of domestic violence between C.H. and her husband and an allegation that the adult son of M.H.'s uncle and the son's girlfriend had been involved in a domestic violence incident while visiting C.H. and her husband's home. With respect to the alleged incident involving the caregivers, an Agency social worker interviewed M.H. and her sisters, who reported that the caregivers had gotten into an argument on Super Bowl Sunday. M.H. and one of her sisters stated that they had no knowledge of the argument between the couple getting physical. However, two other sisters stated that the dispute did get physical, and that C.H. had scratched her husband near the eye and on his forehead. C.H. and her husband admitted having engaged in a verbal dispute but denied any physical altercation. The social worker observed a scratch on the uncle's nose. According to the social worker, when she asked M.H.'s uncle how he had received the scratch, he responded that "it was none of [her] business." The Agency social worker indicated that she reviewed a "verbal safety plan" with the caregivers and that the caregivers "agreed that if they feel an argument coming on that they separate before it escalates."
M.H. denied that there had been other incidents of domestic violence between the caregivers. One of M.H.'s sisters stated that there had been two other incidents.
The report did not further discuss the incident between the uncle's son and the son's girlfriend.
The addendum report indicated that although the incident was "concerning" and "still under investigation," the Agency continued to recommend the termination of Mother's parental rights so that M.H. could be adopted by the caregivers.
The Agency confirmed its prior recommendations in a March 2016 addendum report. The reported noted that, since the last addendum report, C.H. had admitted to having caused the scratch on her husband's nose. The Agency's social worker "closed out" the domestic violence referral as " 'inconclusive' for emotional abuse."
The March 2016 report also stated that M.H. had begun twice weekly therapy sessions. The therapist diagnosed M.H. with a major depressive disorder. M.H. continued to express her desire to be adopted by her aunt and uncle.
The March addendum report indicated that C.H. and her husband were in the process of completing their adoptive home study. The Agency noted that the case had been assigned to an applicant worker and that the caregivers had been cooperative during the application process. The Agency also indicated that there were five families in San Diego County who were interested in adopting a child with M.H.'s characteristics.
The juvenile court held a contested section 366.26 hearing in April 2016. The court received the Agency's reports in evidence and stated that it had reviewed the entire file. Mother's counsel stated that the hearing would be "a trial on the documents." After considering the evidence presented and hearing argument from the Agency's counsel, M.H.'s counsel, and Mother's counsel, the juvenile court found by clear and convincing evidence that M.H. was likely to be adopted. The court reasoned in relevant part:
M.H.'s counsel, who was also M.H.'s guardian ad litem, supported the Agency's recommendations, stating in part: "[M.H. is] with family that very much wants to adopt her. She's a very articulate, charming, young woman. I don't see any exception to adoption at this time, and I believe the Agency's recommendations are legally appropriate."
Mother's counsel argued that the Agency had "not met its burden of proving that [M.H. was] adoptable." Mother's counsel argued in the alternative that, if the court were to find M.H. adoptable, the court should apply the parent / child beneficial relationship exception and refuse to terminate Mother's parental rights. (See § 366.26 (c)(1)(b) [providing an exception to the termination of parental rights where "(i) [t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship"].) Mother does not raise a claim pertaining to the beneficial relationship exception on appeal.
"The Court finds that this child is adoptable. Even though she is older, age 14, it appears that she is with a family who very much wants to adopt her at this time. In addition, the report indicated that there are at least five families who would be a match for [her]."C. Application
Mother contends that the record lacks substantial evidence to support the trial court's determinations that M.H. is specifically and generally adoptable.
With respect to general adoptability, Mother notes that M.H. is over the age of 12 and that her consent is therefore required for any adoption. (See Fam. Code, § 8602 ["The consent of a child, if over the age of 12 years, is necessary to the child's adoption"].) Mother argues that the juvenile court erred in finding that M.H. is generally adoptable because M.H. is "clear on not wanting to be adopted by anyone but relatives."
The Agency "concedes the [juvenile] court erred in finding [M.H.] was generally adoptable given her statements about adoption by strangers." In light of the Agency's concession, we consider only whether the trial court's adoptability determination may be upheld on the ground that there is substantial evidence to support the court's finding that M.H. is specifically adoptable.
Mother maintains that there is not substantial evidence in the record to support the trial court's determination that M.H. is specifically adoptable because "it seems highly likely that the proposed adoption by the aunt and uncle will not be approved." We are not persuaded.
To begin with, as Mother concedes, the "absence of an approved home study[] does not necessarily undermine an adoptability finding . . . ." (Italics added.) (See In re Brandon T. (2008) 164 Cal.App.4th 1400, 1410 [rejecting "the proposition that the absence of a completed home study for the only potential adoptive family constitutes a legal impediment to adoption"].) However, Mother argues that, in this case, the absence of an approved home study does undermine the trial court's determination that Mother is specifically adoptable by M.H.'s aunt and uncle. Mother contends that this is so because it is "highly likely" that the caregivers "will not be approved" as adoptive parents "due to the fact that . . . both have criminal and child welfare histories, and have been involved in recent instances of domestic violence."
As noted in footnote 7, ante, the Agency filed a motion to augment the record in which the Agency requested that we augment the record to include a postjudgment report stating that C.H. and her husband's adoption home study was approved after the trial court entered its judgment terminating Mother's parental rights. For the reasons stated in footnote 7, ante, we deny the Agency's request, and consider the record as it existed at the time of the termination of parental rights. Mother is correct that, as of the time of the termination of parental rights, C.H. and her husband did not have an approved adoption home study.
Neither the caregivers' criminal and child welfare histories nor the domestic violence incident is fatal to the trial court's determination of specific adoptability. The trial court could reasonably have determined that the caregivers' criminal and child welfare histories would not constitute a legal impediment to the caregivers' ability to adopt M.H., given that the Agency's adoption assessment noted that, despite these histories, "a waiver was granted for [M.H.'s] placement" with the caregivers. Even assuming that Mother is correct that the fact that the caregivers were granted waivers for placement "does not necessarily mean the same would hold true for adoption approval," the fact that the caregivers' histories had not proven an impediment to placement supports a finding that such histories were not so serious as to serve as a "legal impediment to adoption." (In re Carl R., supra, 128 Cal.App.4th at p. 1061.)
Mother does not present any argument with respect to the statutory schemes governing criminal or child welfare history disqualifications with respect to placement as opposed to adoption.
There is nothing in the record indicating the nature of the histories.
With respect to the postplacement domestic violence incident, the record indicates that, prior to the trial court's adoptability finding, the Agency investigated the incident, and "closed out the referral as 'inconclusive' for emotional abuse." In addition, the Agency's investigation supports a finding that the incident was relatively minor, and did not involve physical abuse of M.H. or her siblings. Further, the Agency social worker reviewed with the caregivers a "safety plan" to avoid future incidents of domestic violence, and they expressed a willingness to comply with such plan. In addition, at the time of the juvenile court's adoptability finding, there had been no additional reported incidents of domestic violence since the incident discussed in the February 2016 addendum report. Under these circumstances, the domestic violence incident did not preclude the trial court's finding of specific adoptability.
Although the domestic violence incident did not involve physical abuse of M.H. or her siblings, we acknowledge that spousal abuse may have serious detrimental effects on children living in a home in which such abuse is occurring. (See In re R.C. (2012) 210 Cal.App.4th 930, 941-942.) --------
Moreover, contrary to In re Valerie W. (2008) 162 Cal.App.4th 1, 15, on which Mother relies, in which this court concluded that "deficiencies in the [preliminary adoption] assessment report were significantly egregious to undermine the basis of the court's [adoptability] decision," the Agency's preliminary adoption assessment was not deficient in failing to contain sufficient information on "the suitability of the caretakers to adopt." On the contrary, there was considerable evidence in the Agency's preliminary adoption assessment supporting the trial court's implicit finding that M.H.'s aunt and uncle were likely to be approved for adoption, including M.H.'s lengthy placement with them, their commitment to adoption as a permanent plan, the duration of their relationship with M.H., their familial connection with M.H., their cooperation with the home study process, and M.H.'s expressed desire to be adopted by her aunt and uncle. Thus, unlike in In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205, on which Mother relies, the trial court did not rely "solely on the caretakers' desire to adopt" (italics added) as Mother contends. Rather, the juvenile court was presented with substantial evidence supporting its determination that M.H. was "likely to be adopted within a reasonable time" (In re Michael G. (2012) 203 Cal.App.4th 580, 589) by her aunt and uncle.
Accordingly, we conclude that there is substantial evidence in the record to support the trial court's determination that M.H. is adoptable so as to support the judgment terminating Mother's parental rights.
IV.
DISPOSITION
The judgment terminating Mother's parental rights is affirmed.
AARON, J. WE CONCUR: HUFFMAN, Acting P. J. O'ROURKE, J.