In re Abbey R.
Filed 9/10/13 In re Abbey R. CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re ABBEY R., a Person Coming
Under the Juvenile Court Law.
SAN DIEGO
COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
MICHELLE D.,
Defendant and Appellant.
D063598
(Super. Ct.
No. EJ1572B)
APPEAL from
a judgment of the Superior Court
of
County, Gary M. Bubis, Judge.
Affirmed.
Patricia K.
Saucier, under appointment by the Court of Appeal, for Defendant and Appellant.
Thomas E.
Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and
Lisa M. Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
Michelle D. appeals
a judgment terminating parental rights
to her daughter, Abbey R., under Welfare and Institutions Code section
366.26.
finding Abbey was likely to be adopted within a reasonable time. We affirm.
FACTUAL
AND PROCEDURAL BACKGROUND
R.
name="_ftnref2" title="">[2] In October 2000, when Abbey was two weeks
old, she was
removed from her parents' care due to their substance abuse and because her
one-year-old half sister had suffered unexplained bruises and contusions to her
face. Abbey's sister was adopted by
their maternal grandmother. Abbey
reunified with her father after he successfully completed substance abuse
treatment. Michelle did not maintain
contact with Abbey.
The
San Diego County Health and
Human Services Agency
(Agency) received referrals concerning Abbey's welfare in 2003, 2004, 2005,
2006, 2007, 2008 and 2009, alleging Bradley was drinking heavily and providing
inadequate care. In March 2010, Abbey
was hospitalized with severe diabetic ketoacidosis, a life-threatening
condition. She was diagnosed with type 1
diabetes. In January 2011, a school
nurse reported that Abbey had a severe case of ringworm and was always hungry,
tired and dirty. In February, the Agency
received a referral alleging that Abbey and her father did not attend a
diabetes education visit and an appointment with an endocrinologist, and her
health was being seriously compromised.
Abbey saw a doctor after the Agency became involved. Abbey's diabetes was not well
controlled. Bradley acknowledged that
they were not routinely checking Abbey's blood sugar levels.
In
April 2011, the Agency received a referral that a man named "Brad"
and a young girl were living in a motel room and that "Brad" had
offered to have the girl perform "full sex" for $20 and oral sex for
$10, and he had a glass with a white powdery substance in it. Law enforcement investigated the allegations
and discovered methamphetamine in Bradley's motel room. Bradley acknowledged recent methamphetamine
use. The motel room was filthy. Officers found Abbey asleep on the bed under
a pile of pillows and trash. She had not
received adequate treatment for her diabetes.
Her blood sugar level was more than twice the level considered
high. Abbey's hygiene was very
poor. Her food was being gnawed on by
her pet rat and cockroaches, maggots and flies.
Bradley was arrested and jailed on charges of child cruelty and being
under the influence of a controlled substance.
The Agency detained Abbey in protective custody. Abbey denied any sexual abuse.
Abbey
was adjudicated a dependent of the juvenile court under section 300,
subdivision (b). The court removed Abbey
from her father's custody. Michelle, who
had last seen Abbey when she was 14 months old, appeared in the proceedings and
asked the court to place Abbey with her.
The court denied Michelle's request and ordered the Agency to provide
reunification services to both parents.
Michelle visited Abbey several times at Polinsky Children's Center.
The
Agency placed Abbey in foster care and arranged for therapeutic services. A physician at the Chadwick Center for Children and Families
said Abbey's health, personal safety and basic needs clearly had been
neglected. Although Abbey denied sexual
abuse and would not submit to a physical examination, the physician was highly
concerned that Abbey was a victim of sexual exploitation. Abbey was diagnosed with depression and
adjustment disorder with anxiety. Abbey
had tantrums in public in which she cried, stomped her feet and lay on the
ground.
After
she was placed in foster care, Abbey refused any contact with Michelle except
for a Christmas visit in December 2012.
Michelle continued to telephone the foster parent every week to leave
messages for Abbey. Abbey did not want
to visit or speak with her father. After
Bradley made progress in substance abuse treatment and obtained employment, he
tried to obtain a modification of a criminal court restraining order. His request was denied.
Abbey
experienced many deficits as a result of long-term neglect. She lacked basic social skills and was at
times paralyzed by depression and anxiety. By the time of the 12-month review hearing,
Abbey made some progress in therapy and did not appear to struggle emotionally
with her daily life. She did not want to
see or speak to her mother or father. If
her current foster family could not adopt her, Abbey was willing to be adopted
by another family as long as they lived in the country and had horses.
At
the 12-month review hearing in July 2012, the court found that Bradley and
Michelle had made some progress with their case plans but there was not a
substantial probability Abbey would be returned to their custody by the
18-month review date. The court
terminated reunification services, set a section 366.26 hearing and ordered the
Agency to prepare an assessment report under section 366.21, subdivision
(i). At the Agency's request, the court
ordered Abbey to undergo a psychological evaluation as soon as possible and
noted the results of the evaluation could affect the selection of her permanent
plan.
name="_ftnref3" title="">[3]
The
Agency assessed Abbey as a generally adoptable child with a medical condition
and special needs. In November 2012, the
Agency asked the court to continue the section 366.26 hearing for 60 days to
allow the social worker to identify an adoptive family for Abbey. The Agency identified several possible
matches for her in San Diego County. In addition, an out-of-county maternal aunt
was interested in adopting Abbey if she was not placed in San Diego County. Abbey's relationship with her current foster
care family was deteriorating and there was an urgent need to find a permanent
placement for Abbey. Although she had
made therapeutic progress, Abbey's social skills were at the level of a six
year old and her hygiene was at the level of a four year old. Her tantrums decreased in frequency,
intensity and duration and she was sleeping better. Abbey was having headaches and seeing
"orbits of lights." Her doctor
recommended follow-up evaluations by a
and ophthalmologist.
In
mid-November the Agency introduced Abbey to a prospective adoptive family
(caregivers) who lived in a rural area and had a horse, goats, dogs, cats and
other animals. After several weekend
visits and other outings, the Agency placed Abbey with the caregivers. The social worker asked Abbey what was going
well with the new placement. Abbey said,
"Everything."
The
section 366.26 hearing was held on February 14, 2013. The social worker said Abbey was generally
and specifically adoptable. Abbey said
everything was "going great" in her new home. She refused to discuss her past and did not
want to have any contact with her parents.
The social worker said it would be important for Abbey in the future to
gain clarity on her life and circumstances, but she did not seem ready to
address those issues at the time.
Bradley
told the social worker he loved his daughter and understood her need for a
home. He decided not to contest
termination of parental rights and expressed support for the caregivers. The social worker said Bradley's decision had
a positive effect on Abbey, freeing her to move forward with her new life.
At
the hearing, the social worker acknowledged that Abbey and her caregivers were
in "the honeymoon period" where "everybody is pretty happy with
everything." Abbey had an Individualized
Education Plan (IEP) for emotional disturbance.
Her former school was able to accommodate her needs by placing her in
smaller classes. Abbey's new school did
not include those types of accommodations and finding the appropriate
educational situation for Abbey was going to take a lot of work.
Michelle
opposed adoption because she believed she could restore her relationship with
Abbey, and she knew that deep down Abbey wanted to build a relationship with
her. Michelle acknowledged that Abbey
was not bonded to her.
After
finding that Abbey was likely to be adopted within a reasonable time and the
benefits of adoption outweighed any benefit she would receive from maintaining
the parent/child relationships, the juvenile court terminated parental rights.
DISCUSSION
A
Contentions on Appeal
Michelle argues there is not substantial evidence
to support the juvenile court's finding that Abbey was likely to be adopted
within a reasonable time if parental rights were terminated. (§ 366.26, subd. (c)(1).) She contends the juvenile court did not
adequately consider Abbey's chronic medical condition, her needs for special
education and therapeutic treatment, the failure of Abbey's first placement and
the lack of any therapeutic resolution of her past issues. Relying on this court's opinion in In re
Valerie W. (2008) 162 Cal.App.4th 1 (Valerie W.), Michelle argues
the Agency's assessment does not constitute substantial evidence of
adoptability because the social worker did not fully assess Abbey's physical
and mental health issues. She points out
the assessment report did not mention the results of Abbey's court-ordered
psychological evaluation or the referrals to specialists for treatment of
Abbey's ocular migraines.
B
Statement of the Law and
Standard of Review
When
the juvenile court refers a case to a section 366.26 hearing, it is statutorily
required to direct the Agency to prepare an assessment report of the child as
part of its report to the court. (Valerie
W., supra, 162 Cal.App.4th at p. 11.)
The assessment report must address the child's medical, developmental,
scholastic, mental and emotional status; analyze the likelihood the child will
be adopted if parental rights are terminated; describe the efforts made to
identify a prospective adoptive parent or legal guardian for the child; and
provide a preliminary assessment of the eligibility and commitment of any
identified prospective adoptive parent or legal guardian. (§ 366.21, subd. (i)(1); Valerie W.,
at pp. 11-12.) "The assessment
report is 'a cornerstone of the evidentiary structure' upon which the court,
the parents and the child are entitled to rely." (Valerie W., at p. 11, quoting In re Crystal
J. (1993) 12 Cal.App.4th 407, 413.)
A finding of adoptability requires "clear and
convincing evidence of the likelihood that adoption will be realized within a
reasonable time." (
on whether the child's age, physical condition and emotional health make it
difficult to find a person willing to adopt that child. (In re
Sarah M. (1994) 22 Cal.App.4th 1642, 1649.)
If the child is considered generally adoptable, there is no need to
examine the suitability of a prospective adoptive home. (In re
Scott M. (1993) 13 Cal.App.4th 839, 844.)
When the child is deemed adoptable based solely on a particular family's
willingness to adopt the child, the trial court must determine whether there is
a legal impediment to adoption. (
Cal.App.4th 1051, 1061.)
If
the child is adoptable, there is a strong preference for adoption over
alternative permanency plans. (San Diego
County Dept. of Social Services v. Superior Court (1996) 13 Cal.4th 882,
888; In re Zachary G. (1999) 77 Cal.App.4th 799, 808-809.) If the court determines that the child is
likely to be adopted within a reasonable time, the court is required to
terminate parental rights unless the parent shows that termination of parental
rights would be detrimental to the child under one of the exceptions listed in
section 366.26, subdivision (c)(1)(A) and (B).
(In re Lorenzo C. (1997) 54 Cal.App.4th 1330,
1343-1345.)
court determines
substantial evidence from which the court could find
was likely to be adopted within a reasonable time. (In re
Gregory A. (2005) 126 Cal.App.4th 1554, 1562.) Deficiencies in an assessment report go to
the weight of the evidence and if sufficiently egregious, may impair the
adoptability finding and the court's decision to terminate parental
rights. (In re Crystal J., supra,
12 Cal.App.4th at p. 413.) When a
parent challenges an assessment report as inadequate, the reviewing court
evaluates any deficiencies in the report in view of the totality of the
evidence in the appellate record. (Valerie
W., supra, 162 Cal.App.4th at pp. 14-15.)
C
The Adoptability Finding Is
Supported By Substantial Evidence
Although we are concerned about the lack of compliance
with the juvenile court's order to obtain a psychological evaluation for Abbey
as part of the permanent plan assessment, in view of the strength of the other
evidence in the record, we conclude that the omission of the psychological
evaluation from the assessment report does not impair the court's adoptability
finding. This case is not commensurate
with Valerie W. In that case, not only did the assessment
report lack information about test results for a child's serious possible
genetic or neurological disorder, it failed in most respects to comply with
other statutory requirements.
(§ 361.21, subd. (i).) For
example, the record contained conflicting and unclear information regarding the
identity of the prospective adoptive parent or parents. The assessment report did not discuss the
motivation for what appeared to be a joint adoption by a mother and daughter,
or her (or their) capability to meet the children's needs. It also lacked a social history, character
evidence, criminal record clearance, employment history and financial status
for one of the applicants. (
In contrast to the deficient record in
contains evidence that is "reasonable in nature, credible, and of solid
value" to support the court's adoptability finding. (In re
Michael G. (2012) 203 Cal.App.4th 580, 591.) According to the social
worker, Abbey's caregivers were bright, warm adults who were anxious to provide
a stable, loving home to Abbey. They
were seasoned foster parents and experienced parents, and had an approved
adoptive home study. They successfully
completed training in diabetes management.
The caregivers believed that Abbey could "find a place of belonging
and safety" in their home. Once she
was stabilized in their home, the caregivers were open to continuing contact
between Abbey and her maternal and paternal grandparents, and her half sister.
The record shows that Abbey's health, personal
safety and basic physical and emotional needs had been severely neglected
during her childhood. She had type 1
diabetes. When placed in
protective custody, Abbey was diagnosed with depression and adjustment
disorder with anxiety. Her
socialization, behavior and hygiene were deficient for a child her age. Her first foster care placement failed after
more than a year. Abbey was experiencing
severe headaches, possibly triggered by stress or florescent lighting, which resolved
with Tylenol. She needed to see an
ophthalmologist for evaluation of her ocular migraines. Abbey refused to discuss her past history of
neglect and abandonment, and said she wanted to start anew. The court could reasonably conclude that none
of those issues made it unlikely Abbey would be adopted within a reasonable
time if parental rights were terminated.
The
social worker assessed Abbey as generally and specifically adoptable. Abbey was an unusually creative young woman
with advanced verbal skills. Abbey read
quickly, wrote short fantasy novels, had artistic capabilities and was willing
to work with professionals to achieve a more positive well-being. She described herself as "intelligent
and curious." There were 15
families in San Diego County who were interested in a child like Abbey. Out of that pool, the social worker
identified several families that could be a good match for Abbey, including her
caregivers. Abbey's caregivers were
experienced parents who wanted to adopt her.
A maternal aunt expressed interest in adopting Abbey. With respect to Abbey's mental and physical
health, the caregivers completed training to manage Abbey's diabetes before she
was placed with them. She had been in
therapy since she was placed in foster care.
With support and therapy, Abbey's behaviors and hygiene improved. When she moved to the caregivers' home, Abbey
began seeing a therapist who focused on attachment and trauma, and would assist
Abbey and the caregivers in working through any difficulties. At the time of the section 366.26 hearing,
Abbey had been placed with the caregivers for two months. Abbey was happy and comfortable with her new
family. She liked her new home, the
animals and pets and her caregivers.
There were no reports of significant problems with the placement, and
the caregivers expressed their desire to adopt Abbey.
We conclude there is substantial evidence to
support the court's
finding that Abbey was likely to be adopted within a reasonable time if
parental rights were terminated.
(§ 366.26, subd. (c)(1).)
The judgment is affirmed.
IRION, J.
WE CONCUR:
HALLER,
Acting P. J.
O'ROURKE,
J.
name="_ftn1" title="">[1] Unless otherwise indicated, further references are to the
Welfare and Institutions Code.
name="_ftn2" title="">[2] Abbey's father, Bradley, does not appeal. He is mentioned in this opinion only when
relevant to the issues raised on appeal.
