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In re M.L.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE
Jan 19, 2012
No. A132404 (Cal. Ct. App. Jan. 19, 2012)

Opinion

A132404

01-19-2012

In re M.L. et al., Persons Coming Under the Juvenile Court Law. SONOMA COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. C.T., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Sonoma County Super. Ct. No. 3309DEP)

Mother C.T. appeals after the juvenile court found that two of her children, M.L. and S.L., were adoptable and terminated her parental rights. She challenges the finding of adoptability, arguing that no substantial evidence supports the finding. We disagree and therefore shall affirm.

B ACKGROUND

On March 2, 2010, the Sonoma County Department of Human Services (the department) filed a petition pursuant to Welfare and Institutions Code section 300, subdivisions (b), (g), and (j) alleging that mother failed to provide adequate care and supervision for M. L. and S.L., that she had left the children without provisions for support, and that she had abused A.L., a sibling to M.L. and S.L. At the time the petition was filed, M.L. was just over one-year old, and S.L. was two and a half months old. The petition alleged that on February 7, 2010, mother left S.L. unattended in his car seat for 15 minutes, with two blankets covering his head and face. It was alleged that mother has a history of mental health issues and "a history of impulsivity and loss-of-control behaviors involving aggression towards adults and her own children, placing the minors, [S.L.] and [M.L.], at substantial risk in her care." Mother and father have a history of domestic violence and violent incidents have occurred in front of the children. Both children were detained on March 3, 2010.

In a report filed on March 4, the department stated that mother and father had exposed A.L. to violence and had placed the minors at substantial risk of physical and emotional harm. On August 8, 2009, father was arrested while caring for A.L. after mother "was observed to be yelling profanities at [A.L.], to include but not limited to, 'shut the fuck up.' When confronted the mother spit in the face of an adult city employee." Mother was also arrested and convicted of battery (Pen. Code, § 242.) On March 7, 2008, while caring for A.L., "father physically assaulted the mother, to include but not limited to, throwing a rock [at] her, slapping her in the back of the head, and kicking her in the leg." Father was arrested and convicted of assault with a deadly weapon, not a firearm (Pen. Code, § 245, subd. (a)(1)). On February 13, 2007, father attacked mother, causing her "to fall into and knock over the stroller that contained" A.L.

Father "has a history of substance abuse and mental health issues that, at times, renders him unable to provide adequate care and supervision for the minors [S.L. and M.L.], placing the minors at substantial risk of harm in his care. From November 26, 2005 until September 12, 2008, the father was arrested two times for substance abuse . . . . From March 23, 2005 until February 7, 2006, the father was placed on approximately eleven involuntary mental health holds pursuant to [Welfare and Institutions Code] section 5150." Mother has been arrested four times for disorderly conduct (prostitution) and has one conviction for obstructing a public officer. At the time this report was written, father was incarcerated.

On April 7, 2010, the court sustained the petition and continued the order that S.L. and M.L. be removed from the parents' custody.

On September 14, 2010, the department filed a status report in advance of the six-month review hearing for M.L. and S.L. The report recommended terminating reunification services and setting a hearing for termination of parental rights pursuant to Welfare and Institutions Code section 366.26, with a permanent plan of adoption for S.L. and M.L. At the time the report was written, mother was on probation for a conviction for willful cruelty to a child and would remain on probation until June 8, 2013. She was also on probation through May 31, 2013, for a battery conviction.

M.L. was described as "an adorable one year old who is active and who is constantly in motion . . . . His foster parents report that he is always hungry and if he is allowed to feed himself he overstuffs his mouth and chokes. At times he screams really loud and he will pull hair and bite when he is playing." M.L. and S.L. were originally placed in the same foster home but the parents requested that M.L. be placed in a different home because they did not feel they could care for both children. "Some of the behaviors that [M.L.] had at his first foster home included continually throwing things and banging them on walls, banging his head on the wall when he wanted something or didn't like something." M.L. was diagnosed with failure to thrive, poor weight gain, chronic diarrhea, and developmental delays including delayed speech acquisition.

S.L. was described as "a sweet seven-month old who is in need of a lot of attention. He likes being held and his foster mother reports that he will fall apart when left alone." There were concerns concerning S.L.'s muscle development, motor skills and vision. "He does not bear weight on his legs and he does not seem to track, especially with his right eye and he does not blink. . . . His foster mother has noted that he does not blink and that he sleeps with his eyes partially open. However, he does make eye contact and smiles in response to faces." There were no mental health concerns about S.L.

Regarding adoption, the report stated that M. L. and S. L. had been assessed and "[t]o date a concurrent home has not been identified." The report stated that the children had "developmental delays and . . . are of the age when they depend on adults for their basic needs to be met, such as feeding and diaper changes. Furthermore, given the children's tender ages it is essential that they be placed in a home where they will be given the opportunity to bond with caregivers who are present and attentive to their needs." The report also stated that mother "expressed that she wants to do whatever it takes to get her children back. Despite this, there have been many times when she has not followed through with the recommendations of the department and has not made herself available to maintain constant communication about her case. During the last few weeks, [mother] has demonstrated a focused energy in trying to satisfy the items of her case plan. Unfortunately, this dedication is overdue considering the limited time frame that is allowed for family reunification when children are so young. [Mother] has made some progress but it is not enough to ensure that her children will be well taken care of."

On November 19, 2010, the juvenile court terminated reunification services and set the matter for a hearing to finalize a permanent plan of adoption for March 24, 2011.

On March 3, 2011, the department filed a report for the section 366.26 hearing. The report stated that the department had determined that M.L. and S.L. were adoptable. M.L. had been in four placements since becoming a dependent. There was a meeting with a possible adoptive family scheduled for March 9. S.L. had been in two placements and was then placed with a prospective adoptive family.

M.L. was reported to be "a cute little boy, who is small in stature and has some developmental delays. He requires a lot of attention in his day to day activities. He has good receptive language as evidenced by being able to follow directions well, but his speech is very compromised and most unintelligible." Both he and S.L. have a genetic abnormality that may cause health issues and both were being seen by a doctor. M.L. was reported to have "many difficult behaviors which are very challenging. These behaviors include biting, hitting, banging his head, screaming and tantrumming for long periods of time. He appears to have a very low frustration level and is very sensitive to his environment. . . . He has made some improvement in his current foster home."

S.L. was described as "a cute active baby who is just beginning to walk on his own. He has some developmental delays in his gross and fine motor skills." He "appears to be a good-natured toddler, who is very active in his play and curiosity. He was very attached to his previous foster mother, wanting to be with her all the time. It has been reported by the prospective adoptive parents and their agency social worker that he is making a good transition and seems to be very comforted by the prospective adoptive father."

The report concluded that "[b]oth boys, with their special needs, are considered adoptable. [S.L.] has been recently placed with prospective adoptive parents, and his transition is going well. Though [M.L.] is still placed in a foster home, a possible adoptive family has agreed to a disclosure meeting on March 9, 2011." An attached adoption assessment echoed the conclusion that both boys were adoptable.

The termination hearing was held on May 23, 2011. A specialist from the Adoptions Bureau of the Department of Social Services who prepared the adoptability report testified M.L. had been matched with a permanent family and was in transition from his foster home to his new home. She testified that the chromosomal abnormality that both boys carry could manifest in various ways, but that it had not yet done so, except that both boys had small heads, and that "we have no way of knowing how it could play out." She testified that there were no indications of mental retardation, autism, or heart abnormalities. She also testified that the boys likely would never have been tested if M.L. were not so small. "It wasn't that there was anything that's so crucially alarming that's listed under the symptoms of the microdeletion, he was very small and they wanted to find out why." The potential adoptive parents were advised that the boys carried this chromosomal abnormality. The two prospective adoptive families were prepared to deal with any potential symptoms. The adoption specialist testified that "I think first and foremost I believe both families are willing to take the risk of the unknown . . . . And they are also aware from . . . printed material and doctor reports about what could possibly happen."

As to M.L., the specialist testified that since he had been in his current foster home "his behaviors have changed dramatically. When he entered this foster home, he had not had any stability in his life, his whole little lifetime. So he was clearly traumatized. He was biting, head banging, tantruming. He had some very difficult behaviors. At that time in searching for a family that was a factor. My hats off to this foster family, they've done wonderful job in hanging in there and giving him the security and stability and predictability that he needed to grow through some of these things. Today I see [M.L.] and he is a different child. I'm not saying he has no developmental delays, I'm not saying things are perfect, but he has made a tremendous amount of progress and that has made a difference in identifying a permanent home for him." She testified that the issues with M.L. kicking and screaming were resolved. "He needed consistency. He needed discipline." He had not fought with his foster mother since December. The specialist testified that M.L. is receiving physical therapy, speech therapy, and occupational therapy and making progress with all three. She also testified that the placement identified for him was "very qualified" to be an adoptive home. "They are very prepared to take whatever challenge is going to be before them."

S.L. had been placed with his prospective adoptive family since February 11, 2011. That family likewise had been informed that he potentially might face medical and developmental problems due to the chromosomal abnormality. Both potential adoptive families were consulting with doctors concerning the chromosomal abnormality.

At the conclusion of the hearing, the court found that the children were likely to be adopted and terminated mother's parental rights. Mother timely noticed an appeal.

DISCUSSION

Mother argues that there was no substantial evidence the M.L. and S.L. were generally adoptable. "In order for a juvenile court to terminate parental rights under section 366.26, the court must find by clear and convincing evidence that it is likely that the child will be adopted. (§ 366.26, subd. (c)(1).)." (In re Asia L. (2003) 107 Cal.App.4th 498, 509.) We review the juvenile court's order to determine whether the record contains substantial evidence from which a reasonable trier of fact could find clear and convincing evidence of adoptability. (§ 366.26, subd. (c)(1); In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.)

"The issue of adoptability requires the court to focus on the child, and whether the child's age, physical condition, and emotional state make it difficult to find a person willing to adopt. [Citations.] It is not necessary that the child already be placed in a preadoptive home, or that a proposed adoptive parent be waiting. [Citations.] However, there must be convincing evidence of the likelihood that adoption will take place within a reasonable time." (In re Brian P. (2002) 99 Cal.App.4th 616, 624.) "Usually, 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." (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650, italics omitted.)

Mother cites In re Brian P., supra, 99 Cal.App.4th 616 for the proposition that the social worker's report and testimony did not constitute sufficient evidence. That case is distinguishable. In In re Brian P., "[t]he juvenile court did not have the benefit of an adoption assessment report, which would have presented the kind of facts needed to support a finding of adoptability. The Agency relies on the references in the record to adoption assessments conducted on June 20, 2000, and January 10, 2001. However, these references are devoid of any facts about Brian. The June 20 'assessment' merely concluded that Brian was 'approved for adoptive services because of lack of parental compliance with the case plan.' This says nothing about his adoptability. The January 10 'assessment' concluded only that Brian was 'found to be a proper subject for adoption.' The likelihood of an adoption was not mentioned. Nor did the child welfare worker supply more facts in her testimony at the hearing. She merely reiterated the Agency's position that Brian was adoptable." (Id. at p. 624, fn. omitted.)

Here, in stark contrast, there was not only a social worker's report, but an adoption report and the person who prepared the report testified that both proposed adoptive families understood the unique medical condition that the children face and were prepared to deal with any medical issues as they arose. She testified that both families were approved for adoption and that they were ready to adopt the children. Further, the adoption counselor testified that both children were "extremely adoptable" despite their genetic condition. She stated that this was due to "[t]heir age, their health, their progress developmentally, their ability to attach. There is just nothing about either boy that would—that wouldn't even entertain the idea that they were not adoptable."

In re Carl R. (2005) 128 Cal.App.4th 1051, cited by mother in support of her contention that there was not substantial evidence to support a finding of general adoptability, is not on point. In that case, the minor had extreme health issues and would "always require total care." (Id. at p. 1058.) The issue in that case "is very narrow—what is the proper scope of the inquiry by the juvenile court in determining the adoptability of a child who will require intensive care for life?" (Id. t p. 1062.) The court noted that "the assessment of the adoptability of such a child must necessarily include some consideration of whether the prospective adoptive parents can meet that child's needs, since if the prospective adoptive parents cannot meet the child's needs, the child cannot properly be found to be adoptable." (Ibid.)

Although there is no evidence indicating that the children in this case will need total care for life, there was in all events evidence that the prospective adoptive parents are prepared to meet the children's needs as they arise. In short, there was ample evidence that the children both were generally adoptable and that they were likely to be adopted by the families with whom they were placed.

DISPOSITION

The judgment is affirmed.

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Pollak, Acting P. J.

We concur:

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Siggins, J.

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Jenkins, J.


Summaries of

In re M.L.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE
Jan 19, 2012
No. A132404 (Cal. Ct. App. Jan. 19, 2012)
Case details for

In re M.L.

Case Details

Full title:In re M.L. et al., Persons Coming Under the Juvenile Court Law. SONOMA…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE

Date published: Jan 19, 2012

Citations

No. A132404 (Cal. Ct. App. Jan. 19, 2012)