Opinion
A156788
05-22-2020
In re JUAN H. et al., Persons Coming Under the Juvenile Court Law. SAN MATEO COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. BIANCA M. et. al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. 17JD0742)
Bianca M. (Mother) and Juan M. H. (Father) appeal from the order terminating their parental rights to their children, Juan M., Junior M., and Adriel M., and freeing the children for adoption. (Welf. & Inst. Code, § 366.26.) Both contend the juvenile court's finding of adoptability is not supported by substantial evidence. Challenging the reasonableness of the reunification services offered, they also appeal the court's order terminating reunification services, and Mother contends that the San Mateo County Human Services Agency (Agency) and the juvenile court failed to honor the relative placement preference set forth in sections 309 and 361.3. We find no error and affirm the court's orders.
Junior's legal name is Alexander, but we refer to him by the nickname used for him throughout this matter.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
I. BACKGROUND
A. The Dependency Petition and Detention
The Agency filed petitions for each child under section 300, subdivisions (a), (b), and (c) alleging parental abuse and neglect. The petitions alleged each child had signs of physical injuries, Juan and Junior admitted that Father hit them, and Mother admitted she hit the children with a belt. The family's apartment was cockroach infested, full of rotten food, had no place for the children to sleep, and smelled like urine. The children complained of hunger and thirst, and Mother admitted that she and Father engaged in domestic violence in front of the children.
The Agency's detention report stated that, on August 17, 2017, an anonymous caller heard arguing and the statement, "You hit him hard, you almost knocked him out," coming from the family's apartment. When police arrived, Juan and Junior had visible injuries consistent with abuse and said they had been hit by Father earlier that day. Police observed that the family home had rotted food, trash, cockroaches, and limited access to running water. In addition, it smelled of urine and had no food for the children or mattresses to sleep on. Adriel, age two, had no shoes, socks, or diapers. The parents were arrested for cruelty to children with possible injury or death (Penal Code, § 273a, subd. (a)), and the children were taken into protective custody. There had also been two prior Agency referrals for Father's alleged physical and mental abuse of Juan and Junior.
When taken into protective custody, Adriel had a fever, an infected burn on his arm, and a large scar on his elbow. Junior, age five, had a large bruise on his face, no underwear, and his socks and feet were smelly. Junior said that when his mother does not have money, they do not eat. Juan, age seven, had old scars and scratches all over his body, and he wore no underwear. In interviews, Juan and Junior provided non-abusive explanations for their injuries and denied being hit, but Juan also said that both parents hit the siblings and that the parents fought verbally and physically. Juan would try and intervene during his parents' fights, and Father would hit him. In ensuing interviews, Junior said that Father hits Juan, and Juan said Father hit the minors "everywhere" and once kicked Juan while Mother encouraged it. When a social worker asked what message Juan would like to relay to his parents, Juan asked the social worker to tell Mother not to choke them and Father not to hit them.
The court detained the children and found that reasonable efforts to prevent or eliminate the need for removal had been made. The court ordered supervised parental visitation twice weekly upon the lifting of the criminal restraining order prohibiting the parents from contacting the children. The Agency placed the children in an out-of-county foster home. B. The Combined Jurisdiction and Disposition Hearing
The Agency amended the petitions to drop the allegations under section 300, subdivision (a), and the court admitted the Agency's jurisdiction/disposition report into evidence. Mother and Father submitted on the amended petitions, and the court adopted findings and orders for each child. The court ordered reunification services for Mother and Father, ordered visitation for the maternal grandmother, maternal uncles, and paternal aunts, and continued all prior orders not in conflict. C. The Interim and Six-Month Reviews
At the interim review hearing in January 2018, the court received into evidence the report of social worker Alexandra May (May), the children's regular social worker. May described the children's difficulty in regulating their behavior, fights, and tantrums as a result of being abused and witnessing domestic violence. The children volunteered that their parents used to lock them in the bathroom and choke them, and they "talked a lot" about physical abuse by Father. The parents, on the other hand, participated in services but maintained the allegations of physical abuse were false; May reported that the parents had yet to take responsibility for the children's dependency.
The April 2018 six-month review hearing occurred on the uncontested calendar, and it was set for a contested hearing in August 2018. The court ordered psychological evaluations of the children and of the parents if their counsel consented.
At the contested six-month review hearing, the court admitted the Agency's six-month review report and addenda, including the psychological evaluations, and May testified. Both parents were diagnosed with Borderline Intellectual Functioning (low cognitive abilities); in addition, Mother was diagnosed with Major Depressive Disorder and Unspecified Anxiety Disorder, and Father was diagnosed with Adjustment Disorder with depressed mood.
The Agency reported that Juan and Junior spoke of their parents' fighting and abuse, did not often inquire about how their parents were doing, and expressed a desire not to see them; Junior also said that he wanted to his parents but then return to his foster family. The parents regularly participated in services, and their case manager had seen change since they began. Father acknowledged that his alcohol consumption caused domestic violence. However, the parents denied neglecting the children, did not take seriously their service provider's advice regarding separation, believed the boys' extreme fighting was normal, and maintained their innocence and ability to care for their children. The children also reported that the parents violated the no-contact criminal restraining order by calling them during visits with relatives, although the parents denied doing so. Given the parents' lack of insight and behavioral changes, the Agency recommended termination of services for failure to make substantial progress.
May testified that the parents denied using physical discipline, and she did not believe that they would change their behavior. She had not seen real changes in the parents' thinking or ability to understand the severe trauma they had caused their children, nor did she see substantive progress. She also opined that prolonging services would be "to the detriment of the children" and that as time passed, she felt "more strongly about [her] recommendation." At the conclusion of the hearing, the court terminated services and set the hearing on termination of parental rights under section 366.26 (the section 366.26 hearing). D. The Section 388 Petitions
In July 2018, the Agency filed a section 388 petition to commence visitation for Father, reporting that it had learned of the criminal court's willingness to modify the restraining order. Counsel for Adriel and Juan opposed, so the Agency set a hearing for the same day as the six-month review hearing. At the six-month review hearing, Mother's counsel indicated that the criminal court may soon lift the restraining order, and no party objected to continuing the hearing on the section 388 petition for a month. On August 24, 2018, Father pled no contest to a misdemeanor violation of Penal Code section 270, the criminal court dismissed the charges against Mother, and it vacated the restraining order. Father and Mother then filed section 388 petitions requesting visitation.
The Agency's section 388 hearing report revealed that the children's behavioral and individual mental health therapists, the foster family, and foster-family social worker Douglass Weil (Weil) believed visitation would be detrimental for Juan and Junior and likely for Adriel as well. Weil reported that, while Juan and Junior had asked about their mother for about a month and a half after detainment, for the past ten months, without prompting or questioning, they often volunteered that they did not want to see their parents again. May noted that the case was "exceptional" in that Juan and Junior, the two verbal children, frequently stated they did not want to live with or visit their parents. After consultation with the children's therapists and service providers, the Agency withdrew its section 388 petition. The court found there was overwhelming evidence showing that visitation would not be in the children's best interests and denied the petitions. E. The Section 366 .26 Hearing
After continuing the section 366.26 hearing to allow Mother to find new counsel, the court held the hearing on February 26, 2019 and March 18, 2019. The court received into evidence all the Agency's prior reports, and the section 366.26 report and its addenda. Carlos Bravo (Bravo), the children's adoptive social worker, and May testified. The court adopted the findings and orders recommended by the Agency, found by clear and convincing evidence that the children were adoptable, selected adoption as the permanent plan, and terminated Mother's and Father's parental rights. Mother and Father timely appealed.
II. DISCUSSION
A. The Order Terminating Reunification Services and Setting the Section 366 .26 Hearing
The parents first challenge the court's order setting the section 366.26 hearing and terminating reunification services. The Agency contends that they waived this challenge by failing to timely file a writ petition (§ 366.26, subd. (l)). As explained below, the court's failure to advise the parents of their writ rights excused their failure to file a writ petition, so we will address the merits of the challenge to the order terminating services and setting the section 366.26 hearing.
1. Sufficiency of the Writ Advisement
Whenever a juvenile court sets a section 366.26 hearing, it must advise all parties, including the parents, that those wishing to preserve any right to review on appeal of the order setting the section 366.26 hearing must seek an extraordinary writ by filing a notice of intent to file a writ petition. (Cal. Rules of Court, rule 5.590(b).) When the juvenile court set the section 366.26 hearing, the court was required to provide notice orally if the party was present at the time the order was made, or, if a party was not present, by first-class mail to the last known address of the party and/or by electronic service. (§ 366.26, subd. (l)(3)(A)(i)-(ii); see also former rule 5.590(b).)
All further references to rules are to the California Rules of Court.
Rules 5.590(b)(2) and (4) of were amended effective July 1, 2019 to comply with section 366.26, subd. (l)(3)(A)(i)-(ii) and to address electronic service along with mail service (see rule 5.590(b)(2), (4)). In August 2018, former rule 5.590(b) provided: "When the court orders a hearing under Welfare and Institutions Code section 366.26, the court must advise all parties and, if present, the child's parent, guardian, or adult relative, that if the party wishes to preserve any right to review on appeal of the order setting the hearing under Welfare and Institutions Code section 366.26, the party is required to seek an extraordinary writ by filing a Notice of Intent to File Writ Petition and Request for Record (California Rules of Court, Rule 8.450) (form JV-820) or other notice of intent to file a writ petition and request for record and a Petition for Extraordinary Writ (California Rules of Court, Rules 8.452, 8.456) (form JV-825) or other petition for extraordinary writ. [¶] (1) The advisement must be given orally to those present when the court orders the hearing under Welfare and Institutions Code section 366.26. [¶] (2) Within one day after the court orders the hearing under Welfare and Institutions Code section 366.26, the advisement must be sent by first-class mail by the clerk of the court to the last known address of any party who is not present when the court orders the hearing under Welfare and Institutions Code section 366.26. [¶] (3) The advisement must include the time for filing a notice of intent to file a writ petition. [¶] (4) Copies of Petition for Extraordinary Writ (California Rules of Court, Rules 8.452, 8.456) (form JV-825) and Notice of Intent to File Writ Petition and Request for Record (California Rules of Court, Rule 8.450) (form JV-820) must be available in the courtroom and must accompany all mailed notices informing the parties of their rights."
Generally, an order denying or terminating family reunification services and setting a section 366.26 hearing is not appealable and may only be reviewed by way of a writ petition. (§ 366.26, subd. (l)(1), (2); In re Hannah D. (2017) 9 Cal.App.5th 662, 678 (Hannah D.); In re A.H. (2013) 218 Cal.App.4th 337, 346; In re T.W. (2011) 197 Cal.App.4th 723, 729.) However, a parent may challenge the order on appeal if the juvenile court did not advise the parent of his or her right to seek writ review. (In re A.A. (2016) 243 Cal.App.4th 1220, 1235 ["when a parent is not properly advised of his or her right to challenge the setting order by extraordinary writ . . . good cause exists to consider issues relating to the setting hearing"]; In re Lauren Z. (2008) 158 Cal.App.4th 1102, 1110 [mother could challenge order terminating her reunification services where she did not receive a writ advisement]; In re Harmony B. (2005) 125 Cal.App.4th 831, 838-839 [because father was not given notice, he could raise issues concerning the setting hearing in appeal from orders following the section 366.26 hearing].)
The parents were present at the six-month review hearing, and the court did not give an oral writ advisement. Instead, when asked by counsel for one of the minors to advise the parties regarding the writ requirement, the court stated, "Well, I know about appellate rights. I'm not sure I know about writ rights." Father's counsel briefly explained the writ requirement, stating that, once the record is prepared, "a writ has to be filed within ten days." Mother's counsel corrected, "Seven days." Father's counsel then said, "Seven days. Pardon me. And the parents are required to file a writ on a hearing terminating their services and setting a termination hearing if they ultimately are going to appeal the case following any termination of parental rights."
The record here does not show that the court adequately advised the parents of the writ requirements. The court gave no oral writ advisement and merely confirmed that counsel would discuss the subject with their clients. Counsel's statements on the record confused the filing of the writ petition with the filing of the notice of intent to file a writ, and counsel did not state that the notice of intent must be filed within seven days after the order setting the section 366.26 hearing. (Rule 8.450(e)(4)(A).) Nor did counsel clearly explain that challenges to the order setting the section 366.26 hearing, as opposed to challenges to "the case following any termination of parental rights," must first be brought by extraordinary writ. Further, the record does not show that anyone mailed or handed the parents a notification of writ rights, advisement of rights, a petition (form JV-825), or a form notice of intent to file a petition (form JV-820). This case is thus unlike Hannah D., supra, 9 Cal.App.5th at pp. 679-680, relied on by the Agency, wherein the appellate court held that the court's failure to give an oral writ advisement did not excuse the father's failure to bring a writ petition when the father was personally served with an information sheet and Judicial Council forms JV-820 and JV-825 at the hearing setting a section 366.26 hearing.
The writ petition must be served and filed within 10 days after the record is filed in the reviewing court. (Rule 8.452(c)(1).)
The existence of form language reciting that the court gave the parties an oral writ advisement in the findings and orders after hearing (form JV-433), which was mailed to the parents, does not change our conclusion given that the reporter's transcript shows the court did not give an oral writ advisement. (See Hannah D., supra, 9 Cal.App.5th at p. 680, fn. 14 [appellate courts assume the reporter's transcript is accurate when a conflict exists between transcript and minute order].) Nor did the mailing of the court's findings and orders after hearing include JV-825 or JV-820. (Rule 5.590(b)(4).) While we may presume these forms were available in the courtroom (Evid. Code, § 664), there is no indication in the record that the presence of such forms was made clear to the parents or that they were actually provided the forms.
Our conclusion renders it unnecessary to address the parties' remaining arguments on this issue.
2. Termination of Reunification Services
A juvenile court may, at a six-month review hearing for a child under the age of three or a member of a qualifying sibling group, schedule a section 366.26 hearing if the court "finds by clear and convincing evidence that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan." (§ 366.21, subd. (e)(3).) But the court lacks that discretion, and "shall continue the case to the 12-month permanency hearing," if the court finds either that there is a "substantial probability" the child may be returned to his or her parent or legal guardian within six months, "or that reasonable services have not been provided." (Ibid.) Where a section 366.26 hearing is set, the Agency must prove that reasonable services were offered by clear and convincing evidence, but the burden of proving a substantial probability of return by a preponderance of the evidence rests on the parent. (See Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2017) § 2.152[4][b], [5][b][ii].) We review the juvenile court's findings that reasonable services were offered and that there was no substantial probability of return. (Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676, 688-691 (Kevin R.).)
The parents argue that the reunification services offered were not reasonable because they were not allowed visitation after the court lifted the no-contact criminal restraining order. The record belies this argument. At the outset, the court ordered twice weekly parental visits once the criminal restraining order was lifted, and the record suggests that the court subsequently ordered no visitation due to the restraining order. The parents did not appeal the court's orders, nor did they seek to modify them until after the criminal restraining order was vacated on August 24, 2018. The court's finding that reasonable reunification services were offered is not vulnerable to attack on the basis of visitation that was legally restricted. (See Kevin R., supra, 191 Cal.App.4th at p. 681 ["the juvenile court may not order visitation that contravenes a lawful condition of parole imposed on a parent of a dependent child"].)
There is some confusion in the record regarding whether, and on what terms, the criminal restraining order may have been modified for Father in May 2018. The Agency's section 388 motion states the criminal court indicated a willingness to remove the restraining order if the juvenile court ordered visitation, but May testified that she understood that the restraining order was changed to a no-harass order for Father. Father's section 388 motion states, and his counsel represented to the juvenile court, that, at Father's request, the criminal court modified the restraining order to permit visitation at the discretion of the Agency. Father does not argue that the modification was invalid for any reason. Thus, at the time of the six-month review hearing, visitation was still subject to the restrictions of the criminal restraining order, and the criminal court did not vacate the order until August 24, 2018.
In any event, when the issue of modification of the visitation order arose, counsel for Adriel and Juan opposed visitation, and the court ultimately denied the parents' section 388 petitions because visitation was not in the children's best interests. (See § 366.21, subd. (h) [court may deny visitation after setting a section 366.26 hearing if it would be detrimental to the child]; In re Matthew C. (2017) 9 Cal.App.5th 1090, 1094 [parental visitation may be denied during reunification if it would be inconsistent with the physical or emotional well-being of the child].) The court's ruling is supported by the opinions of the children's service providers and mental health therapists, and neither parent appealed that ruling. In these circumstances, the reunification services offered to the parents were not rendered unreasonable for lack of visitation.
The parents also argue that reunification services should have been extended because it was substantially probable that, with visitation, the children would have returned. We disagree.
Again, the court denied visitation as contrary to the children's best interests. And, even had it not done so, sufficient evidence supports the finding there was no substantial probability of return by the 12-month review hearing only two months away. The parents consistently participated in services, but, after almost ten months, they still did not accept or understand their responsibility for the children's harm or the danger their violent relationship posed, and they were not honest about what happened. They consistently maintained their innocence, despite Juan's and Junior's repeated statements that both parents hit and choked them. They did not understand that allowing the children to fight until bruised was neglect, they had yet to articulate specific plans for parenting differently, and Father continued to drink. They also violated the criminal restraining order yet denied the violation. The parents do not dispute the court's finding that they had not made substantial progress. The Agency's belief that the parents could not properly care for the children was also supported by evidence showing that the children required extensive therapeutic services, yet the parents believed their children just needed to see them. Finally, the psychologist who evaluated the family in July 2018 also noted that reunification was premature. The court's finding that there was not a substantial probability of return at the 12-month review is well supported. B. Relative Placement Preference
Section 309 creates a preference for placement of a detained minor with an adult relative, and, within 30 days of the children's removal, required the Agency to diligently identify the children's adult relatives. (§ 309, subds. (a), (d), (e).) Section 361.3 creates a preference for an adult relative seeking placement after a child is taken from his or her parents and placed outside the home pending a determination of whether reunification is possible. (§ 361.3, In re Sarah S. (1996) 43 Cal.App.4th 274, 285.) Section 361.3 applies to placements made after the disposition hearing even after reunification efforts are no longer ongoing whenever a child must be moved (§ 361.3, subd. (d)), and courts have found that this preference also applies, at least during the reunification period, where a relative requests placement even if a new placement is not required. (In re Joseph T. (2008) 163 Cal.App.4th 787, 795; see also In re Isabella G. (2016) 246 Cal.App.4th 708, 722 [holding that section 361.3's placement preference applies after termination of reunification services where the relative consistently sought placement prior to disposition and thereafter and was deceived by the social services agency regarding placement].) Mother contends that the court and Agency failed to identify and consider relatives for placement, but she forfeited this argument.
Dependency appeals are governed by section 395, which provides in relevant part: "A judgment in a proceeding under Section 300 may be appealed from in the same manner as any final judgment, and any subsequent order may be appealed from as an order after judgment." Section 395 makes the disposition order the appealable "judgment." (In re A.A., supra, 243 Cal.App.4th at p. 1234.) Therefore, subsequent orders are directly appealable, except for those setting a section 366.26 hearing which must be challenged by a timely writ petition. (Ibid; § 366.26, subd. (l).) Moreover, a court normally should not consider an objection raised for the first time on appeal in a dependency proceeding. (In re Casey D. (1999) 70 Cal.App.4th 38, 54.)
If Mother believed the Agency had not complied with statutory requirements for pursuing and considering relatives for placement, she could have raised the issue in the juvenile court at the disposition hearing, and, thereafter, on appeal from the disposition order. She did not. Nor does the record reflect that Mother raised the issue in any proceeding below, including the section 366.26 hearing. Unlike in In re Isabella G., supra, 246 Cal.App.4th 708, and In re R.T. (2015) 232 Cal.App.4th 1284, upon which Mother relies, no person raised a claim of improper relative placement preference before the juvenile court in this case. By failing to litigate this issue or request a ruling below, Mother forfeited the issue on appeal. (In re A.K. (2017) 12 Cal.App.5th 492, 499-502 [father forfeited claim regarding the relative placement preference where neither he nor the relative seeking placement challenged the court's placement or requested a hearing or ruling on the matter below]; In re Casey D., supra, 70 Cal.App.4th at pp. 53-54.) C. Adoptability
Father and Mother both contend that, given the children's behavioral issues, the evidence was insufficient to establish that each child was adoptable. We disagree.
1. Additional Background
a. The Jurisdiction/Disposition and Interim-Six Month Reports
After placement with their foster parents, the children fought frequently. Adriel smeared his feces, hit children while playing, screamed randomly, and the foster mother suspected that he had developmental delays. Juan acted like a kindergartner and intentionally urinated on the floor. Junior's behavior was erratic, fluctuating between extreme affection and fits, he scratched his ear violently when upset, and he averaged three major tantrums a day. Juan and Junior talked about death often. The children were not sleeping well, and they began behavioral counseling in December 2017.
b. The Six-Month Review Report
The Agency reported that the children were physically healthy, and, while Juan and Junior exhibited some enuresis, it had improved along with their sleeping. Juan and Junior were in school and developmentally on track. Junior told May that he no longer scratched behind his ear, and the skin behind his ear looked healthy when she visited. But the foster mother reported that Junior had resumed scratching and that he and Juan often lied.
Adriel received therapy from Ms. Saragoza, and he had been referred to the Regional Center for assessment. Ms. Saragoza had concern that Adriel had developmental delays, and Adriel pulled his hair out. Juan and Junior's enuresis had improved, but they still talked about death and dying. Juan and Junior were in behavioral counseling, and Juan had begun listening to instructions at school. Junior's teacher reported that Junior was doing well; he had some bad days, but "not many," and he did not fight with his peers.
The foster mother believed that behavioral therapy was helping. She had seen encouraging signs; for example, the children were not wetting the bed. However, time-outs were not working, and the boys still had tantrums and fought constantly. The older two boys competed for their foster mother's attention and acted out when they did not get what they wanted. All three displayed strong attachment to their foster mother and a high need for reassurance and affection. Juan was still lying, and Junior had begun making sexual comments. Weil acknowledged these behaviors but felt the boys had made progress since placement. He reported that Adriel acted age-appropriately, although he had a speech delay. Individual mental health services had not yet begun.
c. The Psychological Evaluations , Six-month Review Addendum , and Section 388 Report
Psychologist Dr. Salvador-Moses evaluated the children in July 2018. She diagnosed Juan with Post Traumatic Stress Disorder (PTSD) and Unspecified Depressive Disorder, but she ruled out a learning disorder in verbal comprehension. Juan's full-scale intelligence quotient of 73 fell in the borderline range of cognitive functioning.
She observed that Junior was able to engage with a great deal of encouragement. He had trouble sitting still, and had tantrums and distracted thought process, but he was able to respond to Dr. Salvador-Moses's questions. She diagnosed Junior with PTSD, Disruptive Mood Dysregulation Disorder and Disinhibited Social Engagement Disorder. Junior's full-scale intelligence quotient of 93 was considered average.
Adriel was playful and cheerful, responded to prompts, and was appropriately curious about the play therapy toys presented to him during his mental exam. Dr. Salvador-Moses diagnosed him with global developmental delays, possibly resulting from neuropsychological effects of trauma as a developing child. All of the boys suffered from a severe level of trauma from their parents' abuse and neglect.
The boys began to receive individual mental health services. Adriel's therapist, Ms. Saragoza, expressed concern that he may be on the autism spectrum and he periodically smeared his feces. Juan and Junior's therapist reported that they frequently discussed dying and death. Junior's play therapy involved dying or killing, and his therapist believed he had flash backs and did not know what was going on. He still had severe tantrums. Juan reported consistent nightmares about returning to his parents' care.
At school, Juan did well in reading, although his behavior regressed after his parents violated the no-contact restraining order. Staff at Adriel's daycare reported that he could be aggressive, more often when his brothers came to daycare, but he was overall pretty happy; staff confirmed that he was talking more and had slight improvements in his overall behavior.
The foster mother reported the boys were fighting less, and they were doing well spending time with her family on Sundays. The children were sleeping seven hours per night. Adriel was talking more but still pulled out his hair. Junior frequently talked about sex and had off and on issues with ear scratching. Weil agreed with other service providers and the foster parent that the children's behavior had improved, although progress was slow. Nonetheless, he believed the children had made substantial progress from when they were detained.
The Agency's section 388 petition report stated that Juan and Junior had been assessed as unadoptable in August 2018 based on their then-current behavioral challenges and brief time spent in individual therapy. Mental health services for the two were to be transferred to a specialist provider, Ms. Ruano, who had worked with children with similar diagnoses and circumstances and had successfully supported their transition into adoptive placements.
d. The Section 366 .26 Report and Addenda
The November 2018 section 366.26 report stated that Juan and Junior were developmentally on track and were attending weekly therapy. Adriel had been referred to the Regional Center to test for potential autism or intellectual disability. The foster mother reported continual slow, but significant behavior improvements with some full days of improved behavior. Junior no longer wet the bed or had nightmares. He was allowed to remain in an after-school program, although he could be disruptive at school, and he could maintain good behavior at home for about two days. Adriel spoke with increased vocabulary and was learning a lot in day care. May reported that Juan and Junior were engaging and affectionate during her visits, and, while Adriel screamed often, he smiled and was not aggressive or distressed.
Bravo analyzed the children's likelihood of adoption. He acknowledged the children's serious behavioral issues. He reported that the foster mother described Juan as loving and smart. She stated that he used to talk about dying, but he was attending therapy with Ms. Ruano and learning to follow his teacher's instructions. Junior was loving and active, although he was easily frustrated. Bravo reported that Junior's enuresis had decreased, and he was learning to follow his teacher's instructions. The foster mother informed Bravo that Adriel's screaming had decreased and he verbalized more words. Bravo observed that, despite the children's behavioral issues, they were young, healthy and able to develop a healthy relationship with their foster parents. Given these characteristics, he concluded that the children were adoptable.
In the December 2018 section 366.26 addendum, Ms. Saragoza reported that Adriel was doing well in treatment and listened to her most of the time. He was going through the age-appropriate developmental phase of saying "no" frequently. He no longer presented with injuries from the boys' fighting, although he still pulled out his hair and played aggressively during therapy. He spoke in short, full English sentences, and Ms. Saragoza believed he would not qualify for speech therapy at the Regional Center. Ms. Saragoza desired the foster mother to engage to address Adriel's throwing of things, screaming, and jumping off furniture, and she was concerned that the foster mother spoke Spanish to Adriel when he spoke better English. She believed that Adriel needed nurturing and structure, and she opined that he was adoptable because he was young and listened most of the time.
After four sessions, Ms. Ruano reported that Juan and Junior were emotionally intelligent, perfect for therapy, creative, and capable of regulating themselves. She reported difficulty engaging the foster mother and expressed confidence that she could stabilize both boys quickly if their caregiver would engage. Junior and Juan responded to warmth, limit-setting, consistency, and routine, and she saw no reason why they would not be successful in an adoptive home offering these attributes.
Weil reported that he had not seen evidence of the children's fighting in the past few months, and Juan and Junior were no longer having tantrums at their after-school program. He attended a therapy session with Ms. Ruano and the boys and reported the children were responsive and had begun developing coping skills. The Agency noted that the skills and characteristics that Ms. Ruano and Ms. Saragoza opined would be ideal for the children's permanent caregiver—warm, nurturing, structured, able to set limits, and trauma informed—were all reasonable and obtainable traits for a licensed resource parent.
In the February 2019 section 366.26 addendum, the Agency reported that Junior's sleep had improved since he began taking sleep medication. Juan still had trouble sleeping, but he had begun to take medication. The children had been referred to Therapeutic Behavioral Services, and they behaved poorly in respite care while their foster family was on vacation. Ms. Saragoza reported that Adriel's behavior in therapy had become more aggressive, and she suspected the foster mother was bribing Adriel and his brothers with promises and not following through. Adriel had an appointment for a Regional Center interview in March 2019. Ms. Saragoza continued to believe that Adriel was adoptable.
Junior had begun to act out in school following his foster family's return from respite care and had been sent home often. However, his teacher reported that he had been able to use breathing coping techniques when prompted, and he was one of the best readers in his class. Ms. Ruano reported that Junior had responded well to therapy overall, and she believed that his regression was attributable to the fact that he did not have a permanent caretaker reinforcing his therapy skills at home. During this same time period, Ms. Ruano reported that Junior's aggression towards Juan decreased, he was happy during his therapy sessions, and he had a "bright affect."
Juan attended school and an after-school program, and his foster mother reported no concerns. Ms. Ruano was concerned about Juan's lack of sleep. She opined that Juan had obtained "significant progress" in therapy toward his goals. His nightmares had decreased, he was no longer throwing things, kicking, or swearing, and he had fewer anger outbursts of lower intensity. Further, he was able to focus and no longer exhibited acute hypervigilance.
Ms. Ruano also reported that both children continued to engage in therapy and learn, she praised their emotional intelligence, and she remained hopeful of their ability to improve. She believed both needed permanence and opined that both were adoptable.
e. The section 366 .26 Hearing
May testified that the children's therapists informed her that they were all clearly benefiting from therapy, and they were able to learn positive coping skills and do well in therapy. She testified that the therapists' recent concern with regression in the children's behavior stemmed from the fact that the foster mother was not reinforcing what the children learned in therapy.
May acknowledged that Adriel had global development delays but opined that his behavior had improved over the duration of the dependency matter, he had become increasingly responsive to her, and he acted appropriately with the other children and animals. Adriel and Juan were doing well in school and daycare, and May clarified that no child had ongoing enuresis. Juan's sleep had improved significantly with the help of medication, and the children's fighting had decreased and become less of a concern. May described the children as animated, warm, and friendly, and she said that she looked forward to visiting them every month. The children demonstrated a clear ability to attach to their foster mother, and Juan and Junior expressed consistent desire to remain with their foster family. Even with their behavioral issues, considering their strong response to therapy and improvement, May "strongly believed" the children were adoptable.
Bravo testified that, during his fourteen years as an adoptive social worker, he had found permanent homes for sibling sets with serious behavioral and emotional needs. He had twice been tasked with placing a set of three siblings where each had behavioral issues, and both times he found placement, although he acknowledged that the pool of families seeking to adopt three children with emotional and behavioral issues like those of the children was smaller than that seeking to adopt one young child. He had also placed many children diagnosed with PTSD, disruptive mood disorder, and disinherited social engagement disorder with adoptive homes.
Bravo testified that, in his adoptive search efforts since July 2018, he had identified five local families willing to adopt three children with behavioral issues such as the children's, and that, days before the hearing, after seeing the children's profile, a sixth, "very committed" family had their social worker contact Bravo to consider the children for adoption. Of the first five families, two declined to pursue adoption when contacted, Bravo determined one was not a good fit, and the other two families were in the process of being matched with other children when Bravo initiated contact. Based on the children's age, development, relationship with their caregivers and parents, their treatment, the opinions of their social workers and therapists, and his contact with the children and foster family, Bravo opined that he was "believes unequivocally" that an adoptive home will be found for [the children]."
2. Analysis
If the court determines by clear and convincing evidence that a child is likely to be adopted, the court shall terminate parental rights and order the child placed for adoption. (§ 366.26, subd. (c)(1).) The issue of adoptability focuses on the child as an individual, asking whether the child's age, physical condition and emotional health make it difficult to find a person willing to adopt the child. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649 (Sarah M.); In re I.I. (2008) 168 Cal.App.4th 857, 872.) An adoptability finding does not require "that the minor already be in a potential adoptive home or that there be a proposed adoptive parent 'waiting in the wings.' " (Sarah M., at p. 1649.) All that is required is clear and convincing evidence of a likelihood of adoption in a reasonable time. (In re Zeth S. (2003) 31 Cal.4th 396, 406.)
Where a social worker opines that a child is likely to be adopted "based solely on the existence of a prospective adoptive parent who is willing to adopt the minor," courts deem that minor to be specifically adoptable, and an inquiry may be made into whether there is any legal impediment to adoption by that parent. (Sarah M., supra, 22 Cal.App.4th at p. 1650.) The juvenile court did not find that the children were specifically adoptable, and the Agency does not argue that the children were adoptable based solely on the existence of an identified prospective adoptive parent.
"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.) The appellate court does not reweigh the evidence, evaluate the credibility of witnesses or indulge in inferences contrary to the findings of the trial court. (Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968.) Under the requisite standard of review, substantial evidence supports the court's adoptability findings.
First, the children, at ages three, six, and eight, were young and in good physical health. The social workers and service providers working with the children described them as delightful, sweet, emotionally intelligent, loving, animated, engaging, creative, and affectionate. These characteristics support the court's finding that each child was adoptable. (See In re Helen W. (2007) 150 Cal.App.4th 71, 80 [two children's "appealing characteristics, including their young ages, affectionate personality traits, positive interactions with others, and attractive physical appearances," contributed to a finding that adoption was likely].)
Next, while a child's psychological, behavioral and developmental problems might make it more difficult to find adoptive homes, they do not necessarily preclude an adoptability finding. (See, e.g., In re I.I., supra, 168 Cal.App.4th at pp. 861, 871 [children found adoptable with ADHD, bedwetting and tantrums]; In re Helen W., supra, 150 Cal.App.4th at pp. 75, 79-80 [children with severe medical and psychological conditions found to be generally and specifically adoptable]; In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154 [finding no indication that the child's self-urination and regurgitation "were so severe as to make the court's finding of adoptability unsupported"].) The possibility a child may have future problems also does not render the child unadoptable. (In re Jennilee T. (1992) 3 Cal.App.4th 212, 223-225.) Moreover, although a parent challenging an adoptability finding may point to the condition of a child at the commencement of the dependency (e.g., psychological or emotional problems), the court should also consider the progress the child has made during the dependency in assessing adoptability. (See In re A.A., supra, 243 Cal.App.4th at pp. 1312-1313.)
There is no dispute that the children had serious emotional and behavioral issues and would need extensive therapy. Nonetheless, evidence credited by the juvenile court showed that the children made significant, albeit not perfect, progress since commencement of the dependency matter.
By the time of the section 366.26 hearing, Juan had made significant progress in therapy. His nightmares had decreased and his behavior had improved. He was able to focus and no longer exhibited acute hypervigilance. Juan attended school and after-school programs, and, other than his sleeping issues, his foster mother reported no concerns. May also testified that Juan's sleep greatly improved with prescription sleep medication. Ignoring this evidence, Mother points to a single statement by social worker Weil in the Agency's interim six-month review report comparing Juan's behavior to behavior at a Level 14 group home. However, this statement occurred more than a year before the section 366.26 hearing and long before Juan began sessions with Ms. Ruano.
Junior also "responded well to therapy," and he was initially successful in decreasing his anger outbursts and beginning to use self-regulatory strategies. Junior was able to utilize breathing techniques in school when prompted, and he was one of the best readers in his class. His behavior regressed after returning from respite care, and he was sent home from school on multiple days. However, the court credited Ms. Ruano's belief that Junior's regression was attributable to lack of a permanent caregiver who reinforced his therapy lessons at home. Further, Bravo testified that the week prior to the last section 366.26 hearing session, Junior's school had tried a new technique to keep Junior at school that appeared to be working, and the school planned to meet about providing a 504 Plan for educational services for Junior.
In the Agency's section 366.26 report, Ms. Saragoza reported that Adriel did well in treatment. While he had behavioral challenges, his communication and vocabulary continued to improve, and Ms. Saragoza did not believe he would qualify for speech therapy with the Regional Center. He also made progress in decreasing his aggression and screaming. May observed that Adriel was responsive, acting appropriately with other children, and was doing well at daycare. Adriel's aggression had increased in therapy (though not at home or in daycare), but the court credited Ms. Saragoza's belief that Adriel was acting out because of his foster mother's behavior and the lack of permanency in his relationship with her. The fact that Adriel had an upcoming Regional Services evaluation for potential autism does not itself render him unadoptable. (See In re Jennilee T., supra, 3 Cal.App.4th at pp. 223-225 [minor at risk for future developmental and neurological problems with a genetic history of mental illness was not unadoptable where persons expressed interest in adopting her and she was functioning appropriately for her age].)
It is also significant that Bravo, May, Ms. Saragoza, and Ms. Ruano all opined the children were adoptable, and both therapists believed they would thrive in the care of adoptive parents actively involved in their mental health needs. Mother argues that Bravo's opinion was speculative, but he had a master's degree in psychology and fourteen years of experience as an adoption social worker. He had found homes for siblings with serious behavioral and emotional needs. In fact, his testimony was that he had only twice been tasked with placing three siblings with behavioral issues, but both times he found placement. He considered the children's age, development, relationship with their caregivers and parents, treatment, and the opinions of their social workers and therapists, and he "believed unequivocally" an adoptive home would be found. While one social worker's unsupported conclusion that a child is likely to be adopted is insufficient (In re Asia L. (2003) 107 Cal.App.4th 498, 512 (Asia L.)), the four supported opinions here have evidentiary value.
Next, Bravo testified that he had identified five approved families interested in adopting three siblings with characteristics similar to the children. Two of the families declined to pursue adoption, but, as the juvenile court noted, two of the other families were pursuing adoption of children with similar characteristics. Further, after viewing the children's profile, a social worker representing a sixth family had recently contacted Bravo about adoption. And, while Bravo acknowledged the pool of families seeking to adopt a set of three with behavioral issues like the children's was smaller than the pool seeking to adopt, for example, a one-year-old female baby, interpreted in the light most favorable to the judgment, this testimony too supports the conclusion that such families exist. Evidence of approved families interested in adopting children with characteristics (age, physical and emotional health) similar to the dependent child is useful in evaluating adoptability. (See In re Michael G. (2012) 203 Cal.App.4th 580, 592.)
Finally, we find it notable that the foster parents here cared for the children throughout the approximate nineteen months of the dependency. May testified that the foster mother committed to supporting the children's transition into a permanent home and wanted to take a permanent role in their lives. Because of her age, life situation, and life plans, the foster mother believed she would be better suited to a role as a grandparent, rather than as a day-to-day parent. This testimony supports the inference that the children's behavioral challenges were not insurmountable. (Cf. In re Michael G., supra, 203 Cal.App.4th at pp. 587, 592 [finding that a caretaker's consideration of adoption for a child with past behavioral problems was a good indicator that he was likely to be adopted although the caretaker declined to pursue adoption because of her family's health problems].) Strong evidence also established each child's attachment to the foster mother, showing the children's ability to develop healthy relationships with their caregivers. This evidence too supports the juvenile court's adoptability finding.
Father cites Asia L., supra, 107 Cal.App.4th 498, in support of his argument that the children were not adoptable. In Asia L., the appellate court reversed adoptability findings for three young children, each of whom exhibited behavioral problems, including one with extreme hyperactivity who had mixed results with medication and one with drug exposure in utero. (Id. at pp. 510-512.) The agency concluded that the children were adoptable but in need of specialized placements. (Id. at p. 511.) The appellate court concluded that the children's psychological and emotional health "presented a potential obstacle to adoption"; the agency provided no evidence of qualified families willing to adopt children with the children's developmental problems; and evidence that foster parents of two of the children were willing to explore the possibility of adoption was "too vague." (Id. at p. 512.) While there are some similarities, Asia L. does not compel the conclusion that the juvenile court here erred. Unlike in Asia L., the Agency presented evidence of approved families interested in adopting children similar to these children, and the Agency believed the characteristics required of the children's permanent caretaker were reasonable, obtainable, and within the realm of "standard expectations" for adoptive parents.
Similarly, In re Brandon T. (2008) 164 Cal.App.4th 1400, 1409, also relied on by Father, is distinguishable. The court there upheld the specific adoptability of a child with Indian heritage, global development delays, possible autism, and mental health issues. (Id. at pp. 1409, 1411.) The court found that the child was not generally adoptable because the Indian Child Welfare Act (ICWA) required placement with an Indian family and social workers could not find an Indian family capable of meeting the child's needs. The court focused on the ICWA placement issues. "Given all of the ICWA-related variables that could derail adoption with a family other than the relative caretakers, we conclude the minor was not generally adoptable." (Ibid.) ICWA placement preferences are not applicable here.
Other cases cited by the parents are distinguishable. The court in In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205, reversed a specific adoptability finding clearly based on a prospective caretaker's willingness to adopt where no assessment of his criminal or CPS history had occurred. The court remarked that there was no evidence of general adoptability where the adoption assessment ignored the child's relationship with his mother and his prosthetic eye and did not say whether there were approved families willing to adopt a child of the child's " 'age, physical condition, and emotional state.' " (Ibid.) In re B.D. (2008) 159 Cal.App.4th 1218, 1232-1233 involved siblings with behavioral problems where two children were strongly resistant to adoption and the court found evidence of a single, unapproved family's interest in adoption insufficient to show a likelihood of adoption. In In re Brian P. (2002) 99 Cal.App.4th 616, no adoptability assessment had been conducted, and the section 366.26 hearing report concluded a child with evident special needs was not likely to be adopted, although the social worker attempted to retract her conclusion after consultation with county counsel at the section 366.26 hearing. (Brian P., at pp. 620-621, 624.) Here, the Agency supported its opinion that the children were likely to be adopted with analysis and evidence, and there was evidence of approved families with interest in a sibling set such as the children.
Finally, Father's concern that the children may end up "legal orphans" is mitigated by the opportunity to reinstate parental rights if they are not adopted. (§ 366.26, subd.(i)(3).) "Thus, under the current statute, there is no danger of the children becoming legal orphans." (In re I.I., supra, 168 Cal.App.4th at p. 871.) The juvenile court considered the children's personalities, emotional states, progress, their therapists' and social workers' opinions, and determined the children were adoptable. Substantial evidence supports the finding.
The Agency believes that Mother and Father have also argued that the section 366.26 hearing should have been continued for 180 days under section 366.26, subdivision (c)(3) because the children were difficult to place. Mother's opening brief does not mention this subdivision and Father's opening brief does so only in passing when noting the juvenile court did not invoke this subdivision. We do not read these briefs as having raised the argument that the section 366.26 hearing should have been continued 180 days, and if Father or Mother did intend to raise this argument, they abandoned it. (See Brown v. Professional Community Management, Inc. (2005) 127 Cal.App.4th 532, 537 [an issue that is unsupported by pertinent or cognizable legal argument may be deemed abandoned].)
III. DISPOSITION
The juvenile court's orders are affirmed.
/s/_________
BROWN, J. WE CONCUR: /s/_________
POLLAK, P. J. /s/_________
TUCHER, J.