In re D.F.

 

 

 

 

 

 

 

 

 

 

Filed 11/4/13  In re D.F. CA4/3

 

 

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.

 

 

IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA

 

FOURTH APPELLATE
DISTRICT

 

DIVISION THREE

 

 
>

In re D.F., a Person Coming Under the Juvenile Court Law.
ORANGE COUNTY SOCIAL SERVICES AGENCY,         Plaintiff and Respondent,               v.   R.F., et al.         Defendants and Appellants.	G048201            (Super. Ct. No. DP022908)            O P I N I O N

 

                        Appeal from an order of
the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Deborah C. Servino, Judge.  Affirmed.

                        Mitchell Keiter, under
appointment by the Court of Appeal, for Defendant and Appellant R.F.

                        William D. Caldwell,
under appointment by the Court of Appeal, for Defendant and Appellant M.R.

                        Nicholas S. Chrisos,
County Counsel, Karen L. Christensen and Julie J. Agin, Deputy County Counsel,
for Plaintiff and Respondent.

                        R.F.
(Father), and M.R. (Mother), appeal from the order made at the Welfare and
Institutions Code section 366.26 hearing (hereafter the .26 hearing)href="#_ftn1" name="_ftnref1" title="">[1]
terminating their parental rights to their son, D.F.  They contend there is insufficient evidence
to support the adoptability finding.  We
reject their contentions and affirm the order.

FACTS

>Detention

                        D.F. was placed in
protective custody immediately following his birth on August 12, 2012. 
Mother had a history of mental
illness and both Mother and Father had histories of unresolved href="http://www.fearnotlaw.com/">substance abuse, domestic violence, anger
management problems, and extensive criminal records.  Parental rights to another child had already
been terminated after they failed to complete their service plan.  Father was incarcerated when D.F. was
born.  Mother used controlled substances
during her pregnancy with D.F., and he was born with a positive toxicology
screen. 

                        D.F. was born with a
condition, called gastroschisis, where his intestines protruded outside his
body due to a defect in the umbilical cord. 
The condition was diagnosed early in Mother’s pregnancy, and right after
D.F.’s birth, emergency surgery was performed on him.  A second surgery was to be performed in a few
weeks.  D.F. was going to remain
hospitalized for about one month.  D.F.
was otherwise born healthy with an Apgar score of eight or nine.  A petition was filed alleging dependency
jurisdiction under section 300, subdivision (b) [failure to protect] and
subdivision (j) [abuse of sibling]. 

Jurisdiction/Disposition

                        In its September 14, 2012, report for the
jurisdictional and dispositional hearing, Orange County Social Services Agency
(SSA), recommended D.F. be declared a dependent child and no reunification
services be offered to Mother or Father. 
The social worker reported D.F. remained hospitalized.  He had an early medical set-back, but his
second surgery was performed as planned on August 20, 2012.  He
experienced some drug withdrawal symptoms. 
By September 11, the hospital reported D.F. “ha[d] really turned the
corner for the good!”  He was keeping his
food down, he was almost done taking antibiotics, his sutures were being
removed in a day or two, he was being weaned off methadone, and he was being
cleared for release from the hospital. 

                        SSA was investigating
various relatives for placement, but the maternal uncle who was already
adopting D.F.’s older sibling had declined placement because he and his wife
were expecting a baby in the next few months. 
Mother was having visits with D.F.; Father, who was still incarcerated,
was not.

                        D.F. was released from
the hospital on September 17, 2012,
and placed in a medical foster home.  At
the jurisdictional hearing on October
9, 2012, the court found the allegations of the petition true and
set a disposition hearing.

                        On November 14, 2012, SSA reported D.F. remained in
the same foster home.  Mother continued
having occasional visits with D.F.; Father remained incarcerated and had no visits.  On November 12, the foster mother reported
D.F. was “doing great!  Eating
well . . . .  Doing
[well] with tummy time and has good control of his head.”  The foster mother observed D.F. was “stiff”
and she would follow up with the hospital on this.

                        At the disposition
hearing on November 19, 2012,
the court declared D.F. a dependent child and ordered him removed from parental
custody.  It denied reunification
services for both parents and set a .26 hearing for March 19, 2013.

Permanency Planning

                        In its March 8, 2013, report for the .26
hearing, SSA recommended terminating parental rights.  D.F. remained in the same medical foster home
and was thriving.  He was content and
described as “a very happy child” who “smile[d] often and is very engaging.”  The foster parents had no concerns about D.H.’s
emotional or mental health, but they were not able to adopt any more
children. 

                        SSA reported on D.F.’s
medical assessment.  Both Mother and
Father had reported having the same “life-threatening medical condition” and
D.F. “will be tested for this condition between 15-18 months, as is standard
procedure.”  The report described D.F.’s
one-month hospitalization from August 12 to September 17, 2012, due to his
intestinal birth defect.  During that
time, D.F. “underwent multiple diagnostic studies, was on a ventilator with
oxygen support, received nutrition, fluids and antibiotics intravenously.  He was treated for suspected sepsis and had
surgery to correct the gastric defect. 
Often children with gastroschisis require follow up surgery, which is
planned for [D.F.] in the future.”  D.F.’s
next medical appointment was set for May 2013, and in the meantime, he “wears
an abdominal binder for reduction and support of a remaining abdominal hernia.”  Since being placed in the medical foster
home, D.F. had received consistent medical attention and had graduated to solid
foods.  He continued to have “a ‘stiff
lung’ due to being on a ventilator at birth.” 


                        Developmentally, D.F.
was growing as expected, could roll over, “coo” and was responsive to his
environment.  SSA determined D.F. was “highly
adoptable as he possesses many positive qualities,” including his age, positive
developmental progress, and attractiveness.  SSA believed adoption was likely and was the
appropriate permanent plan. 

                        At the time the .26
hearing report was filed, SSA had not identified a prospective adoptive family
for D.F.  The social worker explained
that from August 2012 through February 2013, SSA had been assessing various
relatives suggested by Mother and Father for placement.  Each relative contacted would in turn suggest
another possible relative for placement. 
All the relatives contacted eventually declined to take D.F. for various
reasons including lack of current housing, unwillingness to commit to caring
for a young child, or fear of harassment by Father.  Accordingly, the social worker had reviewed other
families with approved adoptive home studies and had selected a prospective
adoptive family.  The social worker was
awaiting supervisor approval and expected to place D.F. with the selected adoptive
family by the end of March 2013. 

                        The .26 hearing took
place on March 21, 2013.  D.F. was placed
in the prospective adoptive home that morning. 
Father’s counsel objected to terminating parental rights, primarily
asserting D.F. should be placed with relatives. 
Father’s counsel conceded he had no evidence to support application of
any of the exceptions to terminating parental rights but suggested that because
D.F. had “some fairly extensive medical issues. 
[¶] Perhaps, it could be argued [he] is not adoptable as a
result of that. . . .” 
Mother’s counsel joined in Father’s arguments. 

                        County Counsel addressed
Father’s arguments concerning relative placement, pointing out the only reason
D.F.’s placement with a prospective adoptive family had been delayed was the “daisy
chain” of relatives SSA was constantly following up on.  “[D.F.] would have been placed in a pre-adoptive
home previously and almost immediately but for attempting to place with all of
these relatives for the past several months.” 
County Counsel argued D.F. was generally adoptable based on the
assessments in the .26 hearing report. 
Minor’s counsel agreed with County Counsel.

                        The juvenile court found
D.F. was adoptable pursuant to section 366.26, subdivision (c)(1), none of the
exceptions to terminating parental rights applied, terminated parental rights,
and set a review hearing for September 17, 2013.

DISCUSSION

                        Mother and Father
challenge the juvenile court’s finding D.F. was likely to be adopted.  They contend D.F. is a medically fragile
infant because he suffered from a congenital birth defect that required
multiple surgeries, needs future medical monitoring, and might suffer from the same “life-threatening medical condition”
with which both parents have been diagnosed. 
Moreover, although D.F. was placed with a prospective adoptive family on
the day of the .26 hearing, the parents argue there was no assessment of that
family and their ability to adopt, and there was no evidence they had been
apprised of or understood D.F.’s medical needs. 
We reject the parents’ contentions.

                        “The juvenile court may
terminate parental rights only if it determines by href="http://www.fearnotlaw.com/">clear and convincing evidence that it is
likely the child will be adopted within a reasonable time.”  (In re
Carl R. (2005) 128 Cal.App.4th 1051, 1060 (Carl R.).)  “The question of
adoptability posed at a section 366.26 hearing usually focuses on whether the
child’s age, physical condition, and emotional state make it difficult to find
a person willing to adopt that child.”  (>Carl R., supra, 128 Cal.App.4th at
p. 1061.)  “[I]t is not necessary
that the minor already be in a potential adoptive home or that there be a
proposed adoptive parent ‘waiting in the wings.’”  (In re
Sarah M. (1994) 22 Cal.App.4th 1642, 1649 (Sarah M.).)  Indeed, under
section 366.26, subdivision (c)(1), “[t]he fact that the child is not yet
placed in a preadoptive home nor with a relative or foster family who is prepared
to adopt the child, shall not constitute a basis for the court to conclude that
it is not likely the child will be adopted.”

                        “Review of a
determination of adoptability is limited to whether those findings are
supported by substantial evidence.”  (>Carl R., supra, 128 Cal.App.4th at p. 1061.)  “In reviewing the juvenile court’s order, we
determine whether the record contains substantial evidence from which a
reasonable trier of fact could find clear and convincing evidence that [the
child] was likely to be adopted within a reasonable time.”  (In re
Erik P. (2002) 104 Cal.App.4th 395, 400.) 
“If, on the entire record, there is substantial evidence to support the
findings of the juvenile court, we must uphold those findings.  We do not pass on the credibility of
witnesses, attempt to resolve conflicts in the evidence or weigh the evidence.”  (In re
R.C. (2008) 169 Cal.App.4th 486, 491.) 
“On review of the sufficiency of the evidence, we presume in favor of
the order, considering the evidence in the light most favorable to the
prevailing party, giving the prevailing party the benefit of every reasonable
inference and resolving all conflicts in support of the order.”  (In re
Autumn H. (1994) 27 Cal.App.4th 567, 576.)  The appellant bears the burden of demonstrating
“there is no evidence of a sufficiently substantial character to support the
verdict.”  (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

                        The parents’ contention
is based on the incorrect assumption D.F. was considered adoptable only because
a prospective adoptive family had been identified for placement.  There is no evidence the juvenile court’s
adoptability finding was based on the existence of a specifically identified
adoptive parent.  In this regard, this
case is easily distinguished from In re
Valerie W. (2008) 162 Cal.App.4th 1, 13-14, and In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205, cases in which
the adoptability findings were based on a specific person’s willingness to
adopt.  As already noted, for a child who
is generally adoptable, neither a child’s placement in a potential adoptive
home nor the availability of prospective adoptive parents “‘waiting in the
wings’” is a prerequisite to finding adoptability.  (Sarah
M., supra, 22 Cal.App.4th at
p. 1649.)  All that is required is clear
and convincing evidence of the likelihood the child will be adopted within a
reasonable time.  (In re Jennilee T. (1992) 3 Cal.App.4th 212, 223-225.)  Substantial evidence supports the finding
D.F. was generally adoptable.  SSA
determined D.F. was “highly adoptable” due to his “many positive qualities.”  He was described as a happy and engaging baby
who was fully on target emotionally and developmentally.  His medical condition relating to his
gastroschisis was being monitored.  As
for the possibility D.F. may eventually be found to suffer from the same “life
threatening medical condition” with which both parents have been diagnosed, without
more, it is pure speculation that such a possibility renders D.F. unadoptable.

                        The parents suggest SSA’s
inability to place D.F. with relatives indicates his medical condition was so
grave that none were willing to care for him, thus undermining the finding of
adoptability.  The record does not
support them.  SSA explained the
relatives declined placement for their own personal reasons and nothing
suggests it was due to D.F.’s medical needs. 
Efforts at placing D.F. with a relative were on-going up until shortly
before the .26 hearing.  As County
Counsel pointed out, but for the time spent assessing relatives, SSA could have
placed D.F in a pre-adoptive home “almost immediately.” 

                        Finally, any complaints
by the parents concerning a lack of information about the prospective adoptive
parents’ commitment to adopting or understanding D.F.’s medical needs is
rendered moot by subsequent events.  SSA
has moved to augment the record on appeal with postjudgment evidence including
its status review report filed in the juvenile court in anticipation of the
court’s September 17, 2013, review hearing, and the minute order from that
hearing.  (Code Civ. Proc., § 909;
Cal. Rules of Court, rules 8.155(a), 8.252 & 8.410.)  We grant SSA’s motion because our
consideration of the postjudgment evidence will expedite these proceedings and
promote the finality of the judgment.  (See
In re Salvador M. (2005) 133 Cal.App.4th
1415, 1422 [proper to augment record to include agency’s addendum report
disclosing adoptive home study was approved].) 


                        The report indicates
D.F. was placed with the prospective adoptive parents on March 21, 2013, the day
of the .26 hearing, and has remained there. 
The prospective adoptive parents requested de facto parent status and are
awaiting finalization of the adoption. 
The prospective adoptive parents were provided all known information
about D.F.’s medical condition and his care needs prior to his placement with them. 
In their care, the child’s condition had greatly improved and they have demonstrated
an ability to care for him.  The
prospective adoptive parents attended all D.F.’s medical appointments and followed
all medical recommendations.  D.F. had
surgical repair of his remaining hernia in July 2013.  The prospective adoptive parents stayed with
him in the hospital and were instrumental during his recovery period.  D.F. continues to grow and thrive in the
prospective adoptive parents’ home, has been weaned off all medicine, does not
use any medical equipment, is happy and well tempered, has no active diagnosis
and is completely healthy.  Significantly,
prior to accepting placement of D.F.,
the prospective adoptive parents were informed of the need “when he is 15-18
months of age for [illness removed due to medical confidentiality] testing, a
condition which he was exposed to prenatally.”  (Original brackets.)  â€œ[They] have not wavered in their commitment
to the child based on the possibility of this condition or any of [his] other
needs.”  The juvenile court granted the
prospective adoptive parents de facto parent status and found adoption remained
the permanent plan.

                        In short, substantial
evidence supports the juvenile court’s finding D.F. was adoptable.  Therefore, the order terminating parental
rights must be affirmed. 

DISPOSITION

                        The order terminating
parental rights is affirmed.  SSA’s
motion of September 26, 2013, to augment the record is granted.

 

 

                                                                                   

                                                                                    O’LEARY,
P. J.

 

WE CONCUR:

 

 

 

RYLAARSDAM,
J.

 

 

 

BEDSWORTH, J.