Opinion
2d Juv. No. B300577
05-05-2020
In re J.A.O., a Person Coming Under the Juvenile Court Law. VENTURA COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. J.A., Defendant and Appellant.
Maryann M. Goode, under appointment by the Court of Appeal for Defendant and Appellant. Leroy Smith, County Counsel, Joseph J. Randazzo, Assistant County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. J069131)
(Ventura County)
J.A. appeals a juvenile court judgment terminating parental rights to her seven-year-old daughter (J.A.O.), entered after the trial court found the child was adoptable. (Welf. & Inst. Code, § 366.26, subd. (c)(1).) We affirm.
All statutory references are to the Welfare and Institutions Code.
Factual and Procedural History
In July 2015, Ventura County Human Services Agency (HSA) filed a petition for failure to protect and support (§ 300, subds. (b) & (g)) after appellant was arrested for felony criminal threats. Appellant had a history of mental problems (bipolar disorder), domestic violence, and child abuse. She had been the subject of 19 referrals that placed J.A.O. at risk of harm. The trial court sustained the petition and ordered services, but appellant failed to follow the case plan and was arrested for battery and vandalism at a custody exchange. HSA placed J.A.O. with the biological father, and then the maternal grandparents after father failed to protect J.A.O. and exposed the child to domestic violence.
On October 17, 2017, the trial court sustained a supplemental petition and ordered supervised visits. A year later, the trial court sustained a second supplemental petition, finding that the maternal grandparents were not maintaining appropriate boundaries with the parents.
The trial court terminated services at the 12-month review hearing but declined to set the matter for a permanency hearing because J.A.O. was not yet adoptable. J.A.O. exhibited extreme behavioral problems, was sexually acting out, and had anger issues.
Four months later, the trial court granted a section 388 petition to suspend appellant's visits. Appellant was not following the visitation rules and J.A.O. was exhibiting sexualized aggressive behavior and self-harming behaviors. After the trial court terminated visitation, J.A.O. showed marked improvement. The trial court set the matter for a section 366.26 permanency planning hearing. HSA reported that J.A.O.'s foster parents were fully committed to providing for the child's needs and wanted to adopt.
Adoptability Findings
During the five-day contested hearing, the trial court denied appellant's request for a bonding study, found that J.A.O. was adoptable (§ 366.26, subd. (c)(1)), and found that the beneficial parent-child relationship exception to adoption did not apply. The trial court stated that adoptability is "a continuum" that ranges from general adoptability to specific adoptability. "[J.A.O.] falls somewhere, frankly, in the middle. She's young. She's healthy. She's developmentally on target . . . [and] she's been described as bright. She's happy. She's attractive. All of those things support the side of the continuum of generally adoptable. [¶] The attributes that make her move more towards specifically adoptable are her mental health diagnoses and her behavior. [¶] There's no identified legal impediment to adoption . . . . [¶] And I believe that the evidence is clear that [the prospective adoptive parents] are capable and certainly willing to meet [J.A.O.'s] needs. First of all, they've done it for almost a year. And not only they have done it, but they've done more than just simply tolerating her behavior. They've actually met with a therapist or a counselor and learned effective methods of dealing with and addressing [J.A.O.'s] outbursts and behaviors. [¶] [¶] So I think the facts support a finding by clear and convincing evidence that these prospective adoptive parents are able and capable of meeting [J.A.O.'s] needs." "[J.A.O.'s] lived with them for almost a year. She's bonded with them. She calls them mom and dad . . . . She's expressed that she wants to stay in that home . . . to the point of wanting to use their last name when adoption was discussed with her . . . ."
Adoptability
Appellant contends that the evidence does not support the finding that J.A.O. is generally or specifically adoptable. (§ 366.26, subd. (c)(1); see In re Jerome D. (2000) 84 Cal.App.4th 1200, 1204-1205.) "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.] . . . It is irrelevant that there may be evidence which would support a contrary conclusion. [Citation.]" (In re K.B. (2009) 173 Cal.App.4th 1275, 1292.)
Adoptability generally falls into two categories: general adoptability and specific adoptability. (In re B.D. (2019) 35 Cal.App.5th 803, 817.) Where the child's appealing characteristics make the child likely to be adopted, the child "can be found to be generally adoptable even if no prospective adoptive family is '"waiting in the wings,"' ready to adopt. [Citations.] For a specifically adoptable child, on the other hand, the court's inquiry is different. The [trial] court must determine whether there are any legal impediments to adoption and whether there is a prospective adoptive parent who is able to meet the needs of the child. [Citation.]" (Ibid.; see, e.g., In re J.W. (2018) 26 Cal.App.5th 263, 268.)
The evidence is compelling. J.A.O. exhibited extreme behavioral issues but significantly improved after she was placed with her fost-adopt parents and the trial court first suspended, then terminated visitation. When J.A.O. was placed in the foster home, she suffered from opposition-defiant disorder and attention deficit-hyperactive disorder, and was taking psychotropic medication. The extreme behaviors were linked to appellant's visitation and the traumatic placements (six in total). In one placement she threatened to kill herself with a knife. Mental health professionals opined that J.A.O. had a toxic relationship with her biological parents and believed the supervised visits triggered extreme behaviors. After visitation, J.A.O. was defiant and engaged in sexualized behaviors and bedwetting. Appellant exacerbated the problem by giving J.A.O. lipstick and nail polish which prompted J.A.O. to engage in promiscuous behaviors and cuss. J.A.O.'s therapist Anna Rook reported that J.A.O. had a "hard time after visitation" and would break furniture, and had problems trusting others and knowing what to plan for.
When visitation was suspended, and then terminated, the behavioral problems diminished dramatically. The fost-adopt parents had a behavioral therapist come to the home one to three times a week, provided J.A.O. an individual therapist, and participated in family therapy and Wraparound services. J.A.O. flourished and called her fost-adopt parents "mom" and "dad."
Appellant speculates that J.A.O. may suffer future behavioral problems but that does not preclude the finding that the child is likely to be adopted. (In re J.W., supra, 26 Cal.App.5th at p. 268.) The cases cited by appellant are distinguishable and involve prospective adoptive parents who only showed an "interest" in adopting (In re Tamneisha S. (1997) 58 Cal.App.4th 798, 803), fost-adopt parents who changed their minds about adoption and returned the children to the foster home (In re Jayson T. (2002) 97 Cal.App.4th 75, 82, overruled in part by In re Zeth S. (2003) 31 Cal.4th 396, 414), and a case where three siblings had significant behavioral problems and there was no identifiable prospective adoptive parent (In re Asia L. (2003) 107 Cal.App.4th 498, 511-512).
Appellant argues that if parental rights are terminated and the fost-adopt parents do not follow through with adoption, J.A.O. could become a legal orphan with no parent. That scenario has been mooted by the 2005 amendment of section 366.26 which provides that if the child is not adopted after the passage of at least three years from the date the trial court terminated parental rights, and the child and the social services agency agree that adoption is not likely, the child may petition for reinstatement of parental rights. (§ 366.26, subd. (i)(3), formerly § 366.26, subd. (i)(2), Legis. Counsel's Dig., Assem. Bill. No. 519 (2005-2006 Reg. Sess.) Stats. 2005, ch. 634, § 1; see Cal. Juvenile Dependency Practice (Cont.Ed.Bar 2019), § 7.28, p. 640.)
A.B. 519 was enacted in response to In re Jerred H. (2004) 121 Cal.App.4th 793, which concluded that the trial court lacked jurisdiction to modify or set aside an order terminating parental rights even though it would, in all likelihood, render the child a "'legal orphan.'" (Id. at p. 799.) "To avoid such an unhappy consequence, legislation may be advisable authorizing judicial intervention under very limited circumstances following the termination of parental rights and prior to the completion of adoption." (Ibid.) --------
Disposition
The judgment is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J. We concur:
GILBERT, P. J.
PERREN, J.
Tari L. Cody, Judge
Superior Court County of Ventura
Maryann M. Goode, under appointment by the Court of Appeal for Defendant and Appellant.
Leroy Smith, County Counsel, Joseph J. Randazzo, Assistant County Counsel for Plaintiff and Respondent.