Opinion
D073273
06-13-2018
In re L.R. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. Carmen R., Defendant and Appellant.
Monica Vogelmann, under appointment by the Court of Appeal. Thomas E. Montgomery, County Counsel, John E. Philips and Kristen M. Ojeil, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. J519247BCF) APPEAL from orders of the Superior Court of San Diego County, Ronald L. Johnson, Judge. Affirmed. Monica Vogelmann, under appointment by the Court of Appeal. Thomas E. Montgomery, County Counsel, John E. Philips and Kristen M. Ojeil, Deputy County Counsel, for Plaintiff and Respondent.
Carmen R. (mother) appeals orders terminating her parental rights to her daughters, L.R. (11 years old) and E.R. (10 years old), and son, I.R. (5 years old). She contends substantial evidence does not support the orders finding the children adoptable and selecting adoption as their permanent plan. We affirm.
Mother has four additional children who are in other placements, including an older daughter who is under guardianship with a maternal aunt in Missouri. The children's father is not a party to this appeal.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2015, the San Diego Health and Human Services Agency (the Agency) filed Welfare and Institutions Code, section 300, subdivision (b) petitions alleging L.R., E.R. and I.R. were at substantial risk of suffering serious physical harm or illness because their parents willfully or negligently failed to provide them food, clothing, shelter or medical treatment. The juvenile court found true the petitions' allegations and removed the children from the parents' custody. It ordered a plan of reunification services for the parents.
Undesignated statutory references are to the Welfare and Institutions Code.
In April 2016, the juvenile court granted the Agency's applications regarding psychotropic medication for E.R. and L.R., who were both diagnosed with attention deficit/hyperactivity disorder (ADHD).
The social worker stated in a November 2016 status report for the 12-month permanency hearing that the parents continued to be homeless. They lived in a bus that a landowner allowed them to park on his property in exchange for the parents doing five hours of yard work weekly. Mother was not consistently participating in court-ordered counseling and domestic violence programs. Mother visited the children only sporadically. She had tested negative for all drugs.
In a report prepared for the children's 18-month review hearings, the Agency stated the parents remained homeless, had not maintained services, and only visited the children sporadically. In March 2017, the juvenile court terminated mother's reunification services, finding she had made minimal progress with her case plan. It set a section 336.26 hearing to select and implement a permanent plan.
In the June 2017 assessment report prepared for the section 366.26 hearing, the social worker reported L.R. and E.R. were receiving services through Special Families Foster Family Agency, and both girls were participating in therapy for trauma and taking medication for ADHD. The social worker reported I.R. continued displaying aggressive and destructive behavior, including kicking, hitting, spitting, and turning over furniture. He was expelled from a preschool for children with behavioral problems because he hit a teacher and other children. He had been in one relative placement from August 2015 until January 2017, and with different foster parents from January 2017 until the present. However, his current foster mother had given notice that she could not keep I.R. because of his aggressive behavior.
In August 2017, L.R. and E.R. were placed with their maternal aunt in Missouri, who had received a positive home evaluation under the Interstate Compact on the Placement of Children. I.R. started living with his current caregivers in August 2017.
In an October 2017 addendum report, the Agency recommended termination of parental rights and a permanent plan of adoption for L.R., E.R. and I.R. It concluded the children were specifically adoptable as their current caregivers have expressed a desire to adopt them and have demonstrated a desire and commitment to meeting their needs. They also were generally adoptable as several families in San Diego county were approved to adopt children matching their characteristics. Moreover, as a sibling group, seven families were willing to adopt all three children. Conclusions as to L.R.
The social worker reported there were 23 homes willing to adopt a child with L.R.'s characteristics, which include "Caucasian, 10-year-old, female, developmental delays, [ADHD] diagnosis, and ongoing contact with siblings." When asked about adoption and remaining in her aunt's home, L.R. stated, "Awesome!" Conclusions as to E.R.
The social worker reported there were 30 homes willing to adopt a child with E.R.'s characteristics, which include: "Caucasian, nine-year-old, female, no developmental delays, [ADHD] diagnosis, and ongoing contact with siblings." E.R. expressed her excitement regarding adoption and staying with her aunt in Missouri. The maternal aunt had known both girls all their lives, had developed a strong relationship with them, and was willing to adopt them and meet all of their needs. Conclusions as to I.R.
The social worker reported there were 70 homes willing to adopt a child with I.R.'s characteristics, which include: "Caucasian, four-year-old, male, developmental delays, aggressive behaviors, and ongoing contact with siblings." "[His] caregivers have been approved for placement" and "have two adopted children." "They are familiar with the challenges that adopted children face and want to provide [I.R.] with a stable and loving home." The social worker reported that I.R.'s caregivers had developed a strong relationship with him and were willing to meet all of his needs. I.R. called them "Mom" and "Dad" and looked to them to meet his physical and emotional needs.
At the December 2017, contested section 336.26 hearing, the juvenile court admitted into evidence the Agency's July 2017 section 366.26 report, Court Appointed Special Advocate (CASA) reports dated July 2017 and November 2017, and addendum reports dated November 2017 and December 2017. The social worker concluded that the parents had not completed services or assumed their parental responsibilities, and it would not be detrimental to the children to terminate their parental rights.
At the section 336.26 hearing, the Agency's attorney specifically asked social worker Jessica Ayala why as many as 70 families who had completed their adoptive home studies had considered adopting I.R. Ayala testified it was because of I.R.'s "race, his young age, the fact that he's physically healthy, he doesn't have any developmental delays or medical issues and he is a very smart child" and, "he's very cute." The social worker testified that I.R.'s caregivers helped him to such an extent that his IQ score increased 20 points. Moreover, I.R. had progressed to the point of attending a regular preschool where he no longer received behavioral services.
The social worker testified that after she had advised I.R.'s current caregivers of all of his previous aggressive behaviors and explained the reasons I.R. was removed from each home, they did not waver in their desire to adopt him.
The juvenile court considered the evidence presented and counsel's argument and accepted the Agency's recommendations, stating it was "particularly impressed by the last several months of the growth of [I.R.] and actually [L.R.] and [E.R.]. That it looked like the path chosen toward adoption has been appropriate and has been beneficial to all three children." It found none of the statutory exceptions to termination of parental rights and adoption were present and referred the children for adoption.
DISCUSSION
I.
Mother contends the juvenile court erroneously terminated her parental rights and no clear and convincing evidence showed the children were likely to be adopted. Mother argues the juvenile court's adoptability findings were not based on substantial evidence; therefore, before terminating parental rights it should have ensured the children's "new and untested placement" succeeded. She also contends the children "have well-documented special needs which have manifested themselves in displaying [sic] extraordinarily difficult behaviors. The real risk of adoption disruption is high."
The Agency argues the children were specifically and generally adoptable at the time of the section 366.26 hearing because for four months they had already lived with their respective caregivers, who wanted to adopt them. Moreover, multiple families were interested in adopting them.
The court can terminate parental rights only if it determines by clear and convincing evidence the minor is adoptable. (§ 366.26, subd. (c)(1).) An adoptability finding requires "a low threshold:" the court need only determine it is " 'likely' " the child will be adopted within a reasonable time. (In re K.B. (2009) 173 Cal.App.4th 1275, 1292; accord, In re Zeth S. (2003) 31 Cal.4th 396, 406; In re B.D. (2008) 159 Cal.App.4th 1218, 1231.) A determination of adoptability focuses on whether a child's age, physical condition and emotional state will create difficulty in locating a family willing to adopt. (§ 366.22, subd. (b); In re David H. (1995) 33 Cal.App.4th 368, 378.) The possibility a child may have future problems does not mean the child is not likely to be adopted. (In re Jennilee T. (1992) 3 Cal.App.4th 212, 223-225.)
The likelihood of adoptability may be satisfied by a showing the minor is generally adoptable, that is, independent of whether the minor is in a prospective adoptive home (§ 366.26, subd. (c)(1)), or has a prospective adoptive parent " 'waiting in the wings.' " (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649; In re A.A. (2008) 167 Cal.App.4th 1292, 1313.) Nevertheless, "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., supra, 22 Cal.App.4th at pp. 1649-1650.)
We review a court's adoptability finding for substantial evidence. (In re Josue G. (2003) 106 Cal.App.4th 725, 732; In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings. We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or reweigh the evidence. Instead, we view the record favorably to the juvenile court's order and affirm the order even if there is substantial evidence supporting a contrary finding. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53; In re A.A., supra, 167 Cal.App.4th at p. 1313.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
We conclude substantial evidence in the record shows that all three children are specifically adoptable by their current caregivers and generally adoptable by numerous other families. L.R.'s and E.R.'s behaviors improved after being treated with medication for ADHD. Notwithstanding the children's previous behavioral problems, the social worker outlined their characteristics that made them adoptable. Several families also were interested in adopting children like them, including as a sibling unit. We conclude there is substantial evidence to support the finding that all the children are likely to be adopted within a reasonable time following termination of parental rights. (In re Zeth S., supra, 31 Cal.4th at p. 406.)
Mother argues for the first time in reply that the social worker's descriptions in the November 2017 addendum report of what made the children adoptable "do not inform the potential adoptive parents of the true state of the children's developmental issues, treatment needs, or prognosis." Specifically, mother argues that L.R.'s "characteristics terms of 'Caucasian, 10-year-old, female, developmental delays, Attention Deficit Disorder diagnosis, and ongoing contact with siblings' do not provide prospective adoptive parents with an accurate picture of [her]." Mother further argues that E.R.'s " 'Attention Deficit Disorder diagnosis' does not prepare the prospective adoptive parents for 'kicks, punches, and yells when she does not get what she wants.' " Providing no evidence for her claims, which contradict the social worker's testimony and reports, mother speculates regarding I.R.'s adoptability: "It is patently incredible that 70 adoptive families, who have been accurately informed about [him] are willing to adopt a child with his characteristics. The foster family agency had trouble finding a day care for [him] let alone adoptive families."
Arguments made for first time in reply briefs are generally waived. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 763-765.) Thus, we may decline to reach the merits of the forfeited claims. (See In re Dakota S. (2000) 85 Cal.App.4th 494, 501-502 [collecting numerous dependency cases in "wide variety of contexts" in which appellate courts applied the waiver/forfeiture doctrine].)
Even if we exercised our discretion and addressed the claims on the merits, we would conclude the social worker's testimony and documentary evidence support the juvenile court's orders. When a case is referred for a selection and implementation hearing, section 366.21, subdivision (i) requires the Agency to prepare an assessment report detailing such things as the search efforts for absent parents, a review of the contact between the child and his or her parents, and an evaluation of the child's medical, developmental, scholastic, mental and emotional status. Any deficiency in the report goes to the weight of the evidence. (In re John F. (1994) 27 Cal.App.4th 1365, 1375-1378.) We conclude mother has not shown the evidence in the assessment report failed to support a finding the children were likely to be adopted within a reasonable time. Rather, we conclude the assessment report adequately stated the children's developmental status, pointing out the girls were receiving treatment for ADHD, and I.R. had a history of aggressive behavior. The assessment report substantially complied with the requirements of section 366.21, subdivision (i)(1)(C)(i) and provided substantial evidence to support the finding the children were likely to be adopted within a reasonable time.
Additionally, by the time of the section 366.26 hearing, the children had already lived with their caregivers for four months; therefore, the juvenile court could reasonably conclude that the caregivers had directly experienced the hardships associated with caring for children with the characteristics and behavioral and mental health difficulties that L.R., E.R., and I.R. presented. However, far from being dissuaded from adoption, the caregivers had formed strong bonds with the children, who had improved significantly, and the caregivers remained committed to adoption.
DISPOSITION
We affirm the findings of adoptability and the orders terminating parental rights.
O'ROURKE, J. WE CONCUR: McCONNELL, P. J. DATO, J.