Opinion
A133801
09-26-2012
In re ALEX A., a Person Coming Under the Juvenile Court Law. SAN MATEO COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. L.A., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JV 80432)
L.A., the mother of Alex A., appeals from an order that denied her petition for modification seeking placement and additional reunification or maintenance services and an order that terminated her parental rights. Our review is limited to whether the trial court abused its discretion in issuing each order. It did not, and we affirm.
BACKGROUND
Detention and Jurisdiction
Mother abused alcohol and illegal drugs throughout her pregnancy, and she was intoxicated and on methadone when Alex was born prematurely on December 11, 2009 at 27 weeks. He was promptly referred to the San Mateo County Human Services Agency (the Agency). He suffered grave health problems that included chronic lung disease, retinopathy of prematurity, pneumonia, a heart defect, drug withdrawal, seizures, and fetal alcohol syndrome. When he was not yet three months old, Alex underwent heart surgery and spent the first four months of his life in a hospital. When Alex was six months old his pediatrician described him as "the most medically complicated child that he has ever provided services to." There had been numerous prior referrals to Child Protective Services involving Mother's other children. Two live with their fathers, and two were adopted through private placements.
Alex's parents had a poor record of visiting him in the hospital and participating in planning and training for his discharge. In January, Mother was drinking heavily and smoking crack, and she arrived for one visit smelling of, and tested positive for, alcohol. But, she refused to treat her substance abuse. However, by March Mother agreed to a voluntary care contract that involved visiting Alex in the hospital, learning to address his medical needs, psychiatric treatment, and participation in a substance abuse program.
By late April 2010, Alex was medically ready for discharge from the hospital, but he needed extensive and complex follow-up including frequent neurology, cardiology, ophthalmology, gastroenterology and primary care appointments. Because his parents had not visited regularly during his hospitalization, they lacked the knowledge and training needed to care for him at home. The nurse practitioner in charge of Alex's care said that before Alex could be discharged to Mother and Father they "would need to be fully up to speed on how to care for Alexander's [feeding tube], Cardiac issues, know how to respond to infant seizures, know CPR and have all the emergency protocol in place. Most importantly they would need to spend a 72 hour stay at the bedside to observe, learn, practice and take over the care of Alex in the safety zone of the nursery, to demonstrate to the medical staff that when they leave the hospital with their son, he would be receiving proper care." Alex was therefore detained and placed in a shelter home for medically fragile children.
Mother tested positive for alcohol twice in May and June, missed two other tests, and arrived at appointments for substance abuse and mental health assessments under the influence of alcohol. She reported that she drank three beers and a pint of hard liquor a day during her pregnancy and used drugs and alcohol in an attempt to deal with her depression. She and Father were referred to several substance abuse treatment programs, but chose not to enter them. In late May Father reported he asked Mother to "slow down with her drinking" but she still drank "at least a bottle of wine a day and malt liquor."
The jurisdiction hearing was held on June 7 and August 25. Mother was still drinking heavily. She was offered two residential treatment programs, but had entered neither. She had missed eight substance tests, refused to test on two occasions, and tested positive three times.
Alex was still dependent on a feeding tube, but his weight had doubled to 14 pounds. His foster mother reported that he was "beginning to smile and laugh and make appropriate verbal sounds. Development is slow for Alex and at this time he has in place, occupational therapy, physical therapy twice a week and Early Childhood Intervention once a week. He has multiple medical appointments but his doctors are encouraged, but cautious about his development. Alex is very endearing and I am pleased to play a role in his growth and progress." Alex was receiving developmental services to address delays in communication, fine and gross motor skills, cognition, and social and adaptive developmental areas. Both parents visited him almost every week. Several of their visits took place at medical and therapy appointments where the parents participated in discussions with the medical providers, held Alex, and changed his diapers.
Alex was found to be within the court's dependency jurisdiction and the parents were ordered to participate in services. Mother was ordered to immediately engage in substance abuse treatment.
Six-Month Review
By November, Alex had been in the same foster home for medically fragile children for over six months. At nearly a year old, he was very delayed. He seemed detached and had difficulty maintaining eye contact. He was still being fed through a GI tube, showed little affect or attachment to his foster mother or parents, barely cried (even when soiled), and was unable to sit up or crawl. He was being treated by a number of different specialists for his medical and developmental problems. Mother had been offered various residential drug treatment programs, but refused to enter them and said she did not need treatment. She missed four out of ten random drug tests and produced diluted specimens for two others. However, both parents continued to visit Alex regularly and attend his medical appointments, and Mother was appropriate and loving with him. Mother did not believe Alex's medical issues were severe or that they were caused by her drinking.
By the time of the six-month review report in February 2011, little had changed. Mother had still not participated in any court-ordered services, including substance abuse treatment, counseling, or Alcoholics Anonymous meetings. She had missed almost half of 64 drug tests and had many positive tests for alcohol. She was pregnant again, and admitted she was drinking beer with Tylenol PM and Benadryl every night "for pain management purposes." She did not know when the baby was due and was not receiving prenatal care. The parents continued their weekly visits with Alex, but continued to deny his fetal alcohol syndrome diagnosis and its consequences.
Alex's social worker reported that Mother and Father had not made substantial progress toward reunification. "[Mother] has been given numerous opportunities to engage in a program of inpatient services to address her alcoholism (where she would have had access to all of her Court ordered services). Yet, she minimizes her substance abuse issues, has provided an inconsistent drug testing history with numerous positive tests and administrative dirties, and is actively placing her unborn child at risk of health concerns and removal from her care. The mother also states that she is reluctant to engage in inpatient services because she has 'other children to worry about,' although none of her other children reside in her care. The mother has also stated that she would like to work and engaging in an inpatient program would hinder this, although she is not engaged in any Court ordered services and does not report that she is actively looking for work. The mother has consistently given excuses for her lack of engagement in services." Father showed no ability to protect Alex from Mother's alcoholism, which he minimized, had not progressed in individual therapy, and failed to participate in Al-Anon services.
At 17 months, Alex remained significantly delayed. He could roll over and sit up when propped up with pillows, but he still needed a feeding tube and it was not clear whether he would ever learn to eat on his own. It was too early to assess the severity of the brain damage caused by prenatal alcohol exposure and prematurity, but it was thought to be "moderate at best." Alex was being treated by a neurologist, ophthalmologist and cardiologist and attended weekly occupational and physical therapy. He will need 24hour care for many years and will probably need special education, physical, occupational and speech therapy, and other services throughout childhood and for the foreseeable future. Nonetheless, Mother and Father told Alex's pediatrician that they did not see him as delayed, and they felt that he was learning quickly.
Despite Alex's significant developmental needs, his social worker considered Alex to be adoptable and had located a possible fost-adopt family out of state. He was a happy little boy "who enjoys the company of others. He smiles easily and has started to babble."
The six-month review hearing was held on April 20 and May 24, 2011. Mother had not participated in drug treatment or AA meetings, continued to skip drug tests and provided diluted specimens. She began, but did not complete, a "Prenatal to Three" parent education program. She had missed several prenatal appointments, including an ultrasound and a scan for fetal malformations. She refused diabetes testing despite her history of pregnancy-related diabetes.
On April 20 Mother and Father told the court they wanted to relinquish their parental rights, but apparently changed their minds after the Agency determined that Alex could not be relinquished until it was able to place him with a prospective adoptive family.
The court found that reasonable services had been provided, that Mother had made no progress toward alleviating the causes for placement, and that Father's progress had been minimal. The court terminated services and set a hearing pursuant to Welfare and Institutions Code section 366.26.
Further statutory citations are to the Welfare and Institutions Code.
Modification Petition and Termination of Parental Rights
Shortly before the section 366.26 hearing the parents petitioned to modify the juvenile court's order, primarily on the ground that they had been taking good care of their new infant son, Elijah. When the hearing convened, the court observed that the petition to modify was not in the court's file and the court had not seen it. The court accepted the petition for filing, considered it at the hearing, and the attached exhibits were admitted into evidence. The petition and exhibits are attached to Mother's motion in this court to consider further evidence. We will augment the appellate record to include Mother's petition to modify and supporting exhibits on our own motion under California Rules of Court, rule 8.155(1)(A), and deny Mother's motion to consider additional evidence as moot.
By the time of the hearing, Mother and Father were visiting Alex every week and attending his appointments. Both parents engaged with Alex during visits, although staff reported that they sometimes disengaged when his developmental or medical progress was discussed.
The Agency's report for the section 366.26 hearing described Alex as a "sweet natured baby," "a twenty month old little boy, who enjoys the interacting with others. He smiles easily and has started to babble. Alexander can sit on his own with the support of his hands on his sides and has started to lift himself into a crawling position. Alexander can also stand for a short period of time holding on to a chair." But, despite these developments, Alex did not appear to know or recognize people, and he was delayed in all areas of growth. He was receiving weekly physical, occupational and speech therapy, and "will need protection, advocacy and assistance for the rest of his life due to his health problems and limitations." Alex's foster mother reported that he was "conscious of his environment and is most comfortable in a predictable situation. Because he has so many appointments and therapies, he needs calm for the in between times." Alex was slow to display emotions and refused to take food.
Alex's social worker continued to believe he was adoptable. She identified an out-of-state family that was interested in adopting Alex and planned to travel to California to meet him once their home state approved the Interstate Compact for Placement of Children protocol. If they decided to proceed with the adoption they would come back for an extended visit after parental rights were terminated, and then return with Alex to their home state.
Emergency response social worker Saila Martinez testified in support of the section 388 petition. When Elijah was born Martinez conducted an investigation to assess whether he was at risk in Mother and Father's care. Elijah tested negative for drugs and alcohol at birth and, although he was premature, he had no significant medical issues. Mother and Father were renting a room from the paternal grandmother. It was clean, organized and supplied with bassinet, diapers, formula and other baby needs. Both parents were appropriate with the baby when Martinez visited, and she did not hear any negative reports from the hospital staff during Elijah's stay. However, Martinez had little knowledge of Alex's medical condition and did not assess Mother and Father's ability to take care of his special medical and therapeutic needs.
Alex's social worker was also called to testify in support of the modification petition. Mother and Father had visited Alex three or four times each month and attended around five of his medical appointments since reunification services were terminated in May. They were appropriate and loving with Alex during their visits, and would inquire about future appointments. After their reunification services were terminated, Mother told Alex's social worker she would participate in drug testing it if would help prove that she could safely parent Elijah.
Mother testified that since reunification services were terminated she attended all but one of Alex's physical therapy appointments until August, when the appointments were moved to Alex's foster home and she was no longer allowed to attend. She also attended Alex's appointments with a feeding specialist and a pediatric appointment. Mother said she stopped drinking when she was two or three months pregnant with Elijah, and had not consumed alcohol or drugs since services were terminated in May. After Elijah's birth she contacted five or six outpatient programs, but they were too expensive. She would attend a program if reunification services were reinstated. Mother understood that Alex was delayed and would need continued therapy and possibly lifelong care, although she felt his delays were in part caused by having multiple caretakers and appointments.
The court denied the petition for modification. It found that "there is a change of circumstances, and Elijah is probably the best illustration of those changes. However, in terms of benefit to Alex, I can't find sufficient benefit to Alex to change the current orders. I think these have to be approached as two different children. [¶] Even if Alex's needs weren't as grave as they are, the history of the case and the history of the family would weight heavily against considering returning Alex to that home. But then, when you add his very, very unique and special needs to that equation, I think it makes it that much more difficult to consider. [¶] I have to look at the parents' failure to utilize services when they were being offered and urged. And I notice there were many interim reviews. This was not a case where there was a one-time order for services and no attempt to engage you, [Mother], in participating for Alex." The court also found that much of Mother's testimony was not credible.
Adoptions social worker Melissa Kertz testified that the out-of-state family identified for adoption has other adopted children. None of those children have a feeding tube or other special needs, but the mother has a medical background and the family has experience with friends whose children use a feeding tube. They also have an adult child who can provide respite care. However, the family had not yet met Alex because Kertz did not want them to incur the cost of traveling to California while Alex could still be placed with Mother and Father.
Kertz had also located other potential adoptive families. Although children with needs like Alex's are among the most difficult to place, Kertz was certain an adoptive placement would be found either locally or in another county or state. She had received around 25 inquiries about Alex from across the country in response to a post on a public website. About five of those families remained interested in adopting Alex after Kertz explained his condition and needs. Kertz was confident that one of these families would adopt Alex if the adoption by the identified family did not go through.
The court found there was clear and convincing evidence that Alex was likely to be adopted, and terminated both parents' parental rights. Mother filed this timely appeal.
DISCUSSION
I. Denial of the Section 388 Petition
Mother contends the court abused its discretion when it denied her section 388 petition. Specifically, she asserts that her ability to care for newborn Elijah and her claim to have abstained from alcohol and drugs for the preceding four months were changed circumstances that warranted Alex's return to her with family maintenance or reunification services. She also argues that Alex's interests are best served by placement with his parents or, in the alternative, providing them with additional services. The record does not support her claims.
"A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child. [Citation.]" (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) "It is not enough for a parent to show just a genuine change of circumstances under the statute. The parent must show that the undoing of the prior order would be in the best interests of the child." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.) The petition is addressed to the sound discretion of the juvenile court, and its ruling will be disturbed on appeal only for clear abuse of that discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)
In assessing a section 388 petition, a juvenile court must consider the seriousness of the problem leading to dependency; the strength of the child's respective bonds with his parent and caretaker; and the degree to which the original problem may be, and has been, ameliorated. (In re Kimberly F., supra, 56 Cal.App.4th at p. 532.) After the termination of reunification services, the focus shifts to the child's needs for permanency and stability. (In re Stephanie M. (1994) 7 Cal.4th 295, 317; see In re Casey D. (1999) 70 Cal.App.4th 38, 47.) "In fact, there is a rebuttable presumption that continued foster care is in the best interest of the child [citation]; such presumption obviously applies with even greater strength when the permanent plan is adoption rather than foster care. A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, what is in the best interest of the child. [Citation.]" (In re Angel B. (2002) 97 Cal.App.4th 454, 464.)
The record in this case amply supports the juvenile court's determination that the proposed modification was not in Alex's best interests. Alex requires a high level of care, and will for the foreseeable future. Although his parents commendably visited him regularly and attended many of his medical appointments, they seem to deny the full nature and severity of his problems. Despite numerous court orders and offers of services, Mother failed to participate in a drug treatment program, therapy, parent education or Alcoholics Anonymous meetings throughout the dependency proceedings, and she missed or produced diluted specimens at numerous drug tests. Although she claimed to have stopped drinking after services were terminated and said she would enter a drug treatment program if services were restored, the court reasonably disbelieved her. Moreover, there is no evidence that Alex is strongly bonded to Mother. Under these circumstances, Mother's bond with and ability to care for Elijah is insufficient to warrant a different outcome of these proceedings. The court appropriately denied the modification request as not in Alex's best interests.
II. Termination of Parental Rights
The juvenile court may terminate parental rights only if it determines by clear and convincing evidence that it is likely the child will be adopted within a reasonable time. (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1204.) The issue of a child's adoptability "focuses on the minor, e.g., whether the minor's age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor." (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) While it is not necessary that the child already be in a prospective adoptive home or that there be a proposed adoptive parent " 'waiting in the wings,' " "[u]sually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor's age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parent's willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family." (Id. at pp. 1649-1650; In re Asia L. (2003) 107 Cal.App.4th 498, 510.) Alternatively, evidence of " 'approved families willing to adopt a child of [this] 'age, physical condition, and emotional state' " can be used to evaluate the likelihood of the child's adoption. (In re Jerome D., supra, 84 Cal.App.4th at p. 1205; In re Jennilee T. (1992) 3 Cal.App.4th 212, 224-225 . . . [finding a likelihood of adoption where the social worker had identified one family within the foster care system and three families outside the system, in addition to a potential relative, who were all willing to adopt a child with potential neurological problems and all the attendant risks].) (In re Asia L., supra, 107 Cal.App.4th at p. 510; In re R.C. (2008) 169 Cal.App.4th 486, 493-494.)
"We review the factual basis of a termination order to determine whether the record contains substantial evidence from which a reasonable trier of fact could find a factual basis for termination by clear and convincing evidence." (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination we resolve all conflicts in favor of the prevailing party and draw all legitimate inferences to uphold the verdict. If more than one inference can reasonably be deduced from the facts, we are without power to substitute our deductions for those of the trier of fact. (Jason L., supra, at p. 1214.)
Substantial evidence supports the juvenile court's finding that Alex is adoptable. He was a "sweet natured baby" and "very endearing." At 20 months of age he enjoyed interacting with others, smiled easily, and was starting to babble. Despite profound delays, Alex was starting to sit on his own, lift himself into a crawling position and stand, and the Agency had no concerns regarding his mental or emotional status. Kertz, an adoptions specialist with 15 years of experience, firmly believed he was adoptable. In addition to the family that was currently pursuing adoption, she had located four or five other approved families who remained interested in adopting Alex after she explained his special needs, and she was confident that another family would be found if for some unforeseen reason the anticipated adoption did not go forward. The court reasonably credited her assessment and found it likely that Alex would be adopted within a reasonable time. Moreover, it could reasonably infer from Kertz's testimony, the potential adoptive mother's medical background, the efforts she had made to identify local doctors for Alex, and the family's experience with other children who used feeding tubes that the family understood the gravity of the Alex's issues. On this record, there is no basis to disturb the court's finding of adoptability.
DISPOSITION
The orders of the juvenile court are affirmed. The Agency's motion for consideration of additional evidence (see Code of Civil Procedure section 909; In re Zeth S. (2003) 31 Cal.4th 396) is denied as unnecessary to the resolution of this appeal.
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Siggins, J.
We concur: ______________
McGuiness, P.J.
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Pollak, J.