In re Andrew A.

Filed 10/2/07 In re Andrew A. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

Appellant Carolyn N. seeks reversal of the juvenile courts judgment terminating her parental rights because of what she argues is insufficient evidence to support the juvenile courts finding of adoptability, and the courts legal error in evaluating a certain exception to adoption. We affirm the juvenile courts judgment.

BACKGROUND

In January 2006, the Contra Costa County Department of Children and Family Services Bureau (Bureau) filed a petition, subsequently amended, which alleged that Andrew came within the provisions of Welfare and Institutions Code section 300[1] on a number of grounds.

Section 300 Jurisdiction and Disposition Proceedings

Appellant, 24 years old at the time of the dependency proceedings below, is the mother of Andrew A., who was born in June 2005. At a detention hearing held in January 2006, the juvenile court ordered Andrew to be detained outside of appellants custody. He was placed in the home of his maternal grandmother, where he had always lived.

Appellant stipulated to the courts jurisdiction and pled no contest to the amended petition, which alleged, pursuant to section 300, subdivision (b), that Andrew had suffered, or there was a substantial risk that he would suffer, serious physical harm or illness because [t]he mother has a substance abuse problem that impairs her ability to care for and supervise the child. The court accepted the mothers no contest admission to this count, and found that Timothy A. was the childs presumed father. The court authorized the Bureau to place Andrew with appellant after she completed 30 days in a residential treatment program.

In February 2006, the Bureau filed another petition pursuant to section 342 alleging that Andrew also came within the provisions of section 300, subdivision (b), because his father had a substance abuse problem that impaired his ability to care for and supervise him.

A jurisdiction and disposition hearing was held in March 2006. The Bureaus jurisdiction/disposition report, which was admitted into evidence without objection, recounted the events that had led up to its petitions. The Bureau received a referral in June 2005 that the newborn Andrew was being generally neglected by his parents. Appellant admitted she had used drugs two or three times a week for approximately seven to eight months until December 2004, stopped after finding out she was pregnant, and had one relapse in June 2005. The Bureau found that the father had an extensive criminal record evidencing a drug history. The parents were involved in an April 2005 domestic dispute, and police found an illegal drug manufacturing lab in their home.

The Bureau offered the family voluntary family services. The parents agreed to enter outpatient treatment, drug testing, and to attend substance abuse recovery program meetings. In their first test, the father tested positive for methamphetamine and marijuana and the mother tested positive for alcohol. The father tested negative in mid-July 2005, but then tested positive for marijuana and methamphetamine the next week. He then left the home and stopped participating in all services. Appellant missed three tests, then tested negative in late July and multiple times in August 2005. In September 2005, after the parents united, appellant stopped drug testing, and missed all of her tests from September through November 2005.

In early January 2006, after the Bureau told her that a dependency petition would be filed if she did not enter a residential treatment program, appellant, again out of contact with the father, entered a residential treatment program and was allowed to have Andrew with her there. She tested positive for methamphetamine upon her arrival, and tested negative the following week. However, after a dispute with another woman in the program, appellant became unhappy with the program and sought a transfer; against the advice of the Bureau, she left the program and Andrew before arrangements could be made for the maternal grandmother to get Andrew.

The Bureau also reported that both parents admitted needing help after the dependency proceedings were initiated. The maternal grandmother stated that both parents were homeless and had admitted that they were using drugs. The father did not contact the Bureau or visit Andrew after January 24, 2006. The maternal grandmother also reported that she tried to take both parents to a January 2006 drug test, but they refused. According to the grandmother, appellant admitted using drugs and stated, if I cant see my son, then why not use? Appellant requested a visit in mid-February 2006, which took place in a park; appellant appeared to be under the influence. Appellant stated she was no longer involved with the father and wanted to get back on track. She was referred to a residential substance abuse treatment program with availability and claimed later to have contacted the program, but program representatives indicated appellant had not done so.

The Bureau also reported that Andrew was very comfortable with, and attached to, his maternal grandmother, who was willing to provide a permanent home for him if the parents were unable to complete their case plan. Andrew was healthy and reaching all of his developmental milestones.

At the March 2006 jurisdiction/disposition hearing, the court sustained the petition allegations against the father (having already done so regarding the mother) and found Andrew to be a dependent child, ordered his continued removal from parental custody, and ordered family reunification services for both parents, as recommended by the Bureau.

The August 2006 Status Review Hearing

The court held a status review hearing in August 2006. In its status review report and supplemental memorandum, the Bureau reported that appellant enrolled in an outpatient program in mid-March 2006, and had a negative drug test that month. However, in April, in response to the programs drug test request, appellant left the program and had not returned. She missed an appointment with a Bureau social worker in May and had infrequent contact with the Bureau. She contacted a drug treatment program, but did not continue with it after staff recommended she go to detox for a few days because she would have to pass a drug test in order to be admitted. In June 2006, she told a Bureau social worker that she would do anything to get her son back and had been trying to get into detox. The social worker called the detox facility in appellants presence, and was told a bed was available. However, appellant did not go to the facility and did not contact the Bureau again, despite the Bureaus repeated efforts to contact her in the weeks before the hearing. She did not visit Andrew regularly, but did see him approximately twice a month for two hours under the grandmothers supervision. The Bureau also reported that the father had not had any contact with the Bureau nor visited Andrew for nearly eight months, and that his whereabouts were unknown.

The Bureau further reported that Andrew, who had recently turned one, was crawling and pulling himself up to a stand, and would soon take his first steps. He was eating some solid foods and had a good appetite. He was described as having a wonderful smile that he was always showing, being a good sleeper, and as having a wonderful disposition. His maternal grandmother, in whose care he remained, was described as a wonderful caregiver. The Bureau stated that Andrew continued to thrive in the care of his maternal grandmother, and that the grandmother wanted to adopt Andrew if his parents failed to reunify with him.

The Bureau recommended terminating reunification services because the parents had failed to participate in services or overcome their drug addictions. The Bureau did not believe there was a substantial probability that Andrew would return home if services were extended. The Bureau believed Andrew was adoptable because he was one year old, developmentally on target, and did not have any health problems.

At the August 2006 status review hearing, the parents did not present any evidence. Andrews attorney stated that he was in favor of the Bureaus recommendations, and that Andrew was in a very stable placement with his grandmother and doing very well there. Appellant, through counsel, requested more time to participate in a residential drug treatment program and to complete her case plan. The court, adopting the Bureaus recommendations, terminated reunification services, found that reasonable services had been offered to the parents, and set a hearing to consider parental termination pursuant to section 366.26.

The Section 366.26 Hearing

The Bureaus report for the section 366.26 hearing recommended termination of parental rights and a finding that adoption was the most appropriate permanent plan for Andrew. The Bureau reported that Andrew continued to live with his maternal grandmother, who was his prospective adoptive mother. Andrew was on target developmentally for his age and was attending a Head Start program. He was a happy child who was comfortable in the care of his maternal grandmother and continued to do well in her care. Andrew barely knew his father and had not developed a parent/child relationship with his mother because her contact with him was not consistent, and had been sparse. The Bureau reported that the maternal grandmother was in the process of completing her adoptive home study. A background check had found no criminal or child abuse history for her, and her DMV record was also clear of problems.

At the section 366.26 hearing, the Bureau and Andrews attorney submitted on the Bureaus report. Andrews attorney added that Andrew was doing very well in his grandmothers home, that he was progressing well, gaining weight, meeting all the normal milestones. Hes very well adjusted to that home.

Appellants counsel called the maternal grandmother to testify. The maternal grandmother testified that she had talked with a social worker on Andrews case and asked in the beginning if guardianship was feasible, but that [t]hey told me that due to his age, that wasnt really an option. When asked if she would like to do a guardianship, she responded, I would like [appellant] to eventually get it together and be able to have him back, yes. But, you know, Im doing what I need to do to make sure that Andrew stays in the family. She then stated, without any qualification, her willingness to adopt Andrew. Upon further questioning, she again indicated that she preferred guardianship so that it would be easier for her daughter to get Andrew back if she ever overcame her drug problem and was able to parent him. She also indicated that she intended to adopt Andrew if appellants parental rights were terminated that day. She also said that she wanted to do whatever is best for Andrew, and she did not know of any obstacles that would prevent her from adopting him.

The Bureau and Andrews counsel recommended that the court follow the Bureaus recommendations. Appellants counsel requested that appellants mother be granted guardianship because [t]hat would give [appellant] an opportunity, if she were to change her situation, to possibly get Andrew back in the future. The fathers counsel opposed the Bureaus recommendations and supported a guardianship finding.

At the hearing, the court ruled that the evidence is uncontroverted that we have a beautiful child who is clearly adoptable if not by the grandmother, by many other families and, therefore, that there was clear and convincing evidence that he was adoptable. The courts subsequent written findings and orders included the determination by clear [and] convincing evidence that it is likely the child will be adopted. The court also specifically stated at the hearing that it needed to see if any of these exceptions apply or it would be detrimental to him to have his parental rights terminated. The court then indicated that neither parent had complied with their case plans, nor was there evidence that either of them had contact with Andrew that rose to the level of developing a significant positive attachment with him. The court then stated, So, none of the exceptions apply. The court also indicated that it was inappropriate to wait further to see if either parent could turn it around because Andrew needed to know that he had a permanent home with someone. Adopting the Bureaus recommendations, the court terminated appellants parental rights and ordered that Andrew be placed for adoption.

Appellant subsequently filed a timely notice of appeal.

DISCUSSION

I. The Courts Finding About Andrews Adoptability

Appellant argues the juvenile courts order terminating her parental rights must be reversed because there was insufficient evidence to support its determination by clear and convincing evidence that Andrew likely will be adopted. This is incorrect.

We review the juvenile courts determination that clear and convincing evidence of Andrews likely adoptability exists to determine whether the record contains substantial evidence from which a reasonable trier of fact could find a factual basis for termination by clear and convincing evidence. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) In doing so, [w]e do not reassess the credibility of witnesses [citation], and we review the record in the light most favorable to the findings of the juvenile court [citation], drawing all inferences from the evidence which support the courts determination. [Citation.] By this process we endeavor to determine whether evidence of reasonable, credible and solid value exists such that a reasonable trier of fact could find as the trial court did. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1177.)

In conducting our substantial evidence review, we bear in mind that [c]lear and convincing evidence requires a finding of high probability. The evidence must be so clear as to leave no substantial doubt. It must be sufficiently strong to command the unhesitating assent of every reasonable mind. [Citations.] (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205.)

The issue of adoptability requires the court to focus on the child, and whether the childs 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; accord In re Lukas B., supra, 79 Cal.App.4th at p. 1154.) Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minors 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 parents willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by someother family. (In re Sarah M. (2000) 22 Cal.App.4th 1642, 1649-1650.)

The juvenile courts determination was based on its finding, among other things, that the evidence is uncontroverted that we have a beautiful child who is clearly adoptable if not by the grandmother, by many other families. There was substantial evidence supporting this finding in two regards. First, Andrews maternal grandmother testified that she was willing to adopt Andrew. Her interest as a prospective adoptive parent indicated Andrew was likely to be adopted within a reasonable time. (In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.)

Appellant, citing In re Jerome D., supra, 84 Cal.App.4th at page 1205, and In re Amelia S. (1991) 229 Cal.App.3d 1060, 1065, contends that there must be evidence of approved families that are willing to adopt Andrew. Neither case stands for such a requirement. In re Jerome D. involved a former boyfriend of the subject childs mother, Mr. E., who had expressed an interest in adopting the child. (In re Jerome D., at pp. 1203, 1205.) Mr. E. had a history of several domestic violence convictions, and had been listed as a perpetrator with Child Protective Services (CPS) for emotionally abusing his nephews and niece. (Id. at p. 1203.) Given these facts, the appellate court did not consider Mr. E.s desire to adopt the child sufficient to support an adoptability finding, as the social service assessment did not address his criminal and CPS history as required[.] (Id. at p. 1205.) While Mr. E. had not yet been approved for adoption (according to the social service agency, for lack of fingerprints returned by the state and a character reference, both expected), this appears to have been beside the point. (Ibid.) In re Amelia S. merely points out that a few foster parents were considering adoption, which was a far cry . . . from the clear and convincing evidence required to establish the likelihood of adoption. (In re Amelia S., at p. 1066.)

Respondent cites a case which does address the approved question. In re Marina S. (2005) 132 Cal.App.4th 158, held that there is no requirement that approval for adoption be given before a court can terminate parental rights. (Id. at p. 166.) The question before the juvenile court was whether the child was likely to be adopted within a reasonable time, not whether any particular adoptive parents were suitable. (Ibid.) Here, Andrews maternal grandmothers history, rather than reveal any negative issues, showed that she was a wonderful caregiver to Andrew and committed to doing whatever was best for him. Furthermore, she was in the process of completing her adoptive home study. There was no evidence of any legal or other impediment to her ultimate ability to adopt Andrew. Under these circumstances, her interest in adopting Andrew was substantial evidence supporting the trial courts determination about Andrews adoptability.

Second, there was substantial evidence of clear and convincing evidence that, even if Andrews maternal grandmothers interest was not relevant, Andrew was likely to be adopted within a reasonable period of time. The undisputed facts were that he was a one-year-old in good health who was meeting all developmental milestones, and was a happy child with a delightful disposition. There was not a single fact that contradicted this clear and convincing evidence of his eminent adoptability.

Appellant argues that the social workers opinion that he was adoptable due to his age and good health amounted to an unsubstantiated opinion that Andrew was likely to be adopted and, as such, was insufficient to support a finding of adoptability pursuant to In re Brian P., supra, 99 Cal.App.4th at page 624. Appellants argument is misplaced. In re Brian P. addressed the opinion of a social worker that was stated without reference to any facts (ibid),[2] while here, there was positive and undisputed evidence regarding Andrews age, development, health, and disposition.

Appellant also claims support from In re Asia L. (2003) 107 Cal.App.4th 498, 510, contending that court found that without evidence of approved families that were interested in adopting a similar child, the description of minor as a cute, smart, hyperactive two-and-a-half-year-old minor was insufficient to support a finding that the minor was likely to be adopted within a reasonable time. The court in In re Asia L. was confronted with more complicated circumstances than that, as the subject childs hyperactivity was considered a negative characteristic; indeed it was reported by his therapist that he was the most hyperactive child she has ever seen. (Id. at p. 511.) Furthermore, there was evidence that he was in need of medication, a great deal of limit setting and containment, had a poor attention span and impulse control, a low frustration tolerance, and made abrupt changes. (Ibid.) These are a far cry from the facts of this case. In re Asia L. also does not hold that evidence of approved families interested in a similar child be presented in the absence of evidence of a specific prospective adoptive parent, but only that such evidence can be used to evaluate the likelihood of the childs adoption. (Id. at p. 510.) Evidence of a childs young age, good physical and emotional health, . . . intellectual . . . growth, and ability to develop interpersonal relationships can be bases for determining a childs adoptability, even in the absence of a prospective adoptive parent. (In re Sarah M., supra, 22 Cal.App.4th 1642, 1651.)

Accordingly, appellants argument that there was insufficient evidence to support the juvenile courts ruling is without merit.

II. Appellants Exception Argument

Appellant also argues that the juvenile courts order identifying adoption as the legal plan should be reversed because the court failed to apply the proper legal test to determine that section 366.26, subdivision (c)(1)(D)s exception to adoption was inapplicable. This argument is without merit.

In section 366.26 proceedings, adoption is the preferred plan and, absent an enumerated exception, the juvenile court is required to select adoption as the permanent plan. (In re Jasmine T. (1999) 73 Cal.App.4th 209, 212.) There are five statutory exceptions that may present a compelling reason for determining that termination [of parental rights] would be detrimental to the child . . . . ( 366.26, subd. (c)(1).) This includes if [t]he child is living with a relative, foster parent . . . who is unable or unwilling to adopt the child because of exceptional circumstances, that do not include an unwillingness to accept legal or financial responsibility for the child, but who is willing and capable of providing the child with a stable and permanent environment and the removal of the child from the physical custody of his or her relative, foster parent . . . would be detrimental to the emotional well-being of the child. ( 366.26, subd. (c)(1)(D).)

We agree with respondent that appellant has waived this exception argument by failing to raise it below. The burden is on the parent to show that the termination of parental rights would be detrimental to the children under one of the statutory exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) The record is clear that appellant never mentioned this exception. She contends that her counsels argument that the grandmother should be granted guardianship was sufficient to raise the exception. However, appellants counsel did not make the argument because of any purported unwillingness on the grandmothers part to adopt Andrew, or because of any detriment to Andrew; rather, counsel merely stated that a grant of guardianship would give [appellant] an opportunity, if she were to change her situation, to possibly get Andrew back in the future. This simply does not raise the section 366.26, subdivision (c)(1)(D), exception. Therefore, appellant has waived the argument on appeal. (In re Rachel M. (2003) 113 Cal.App.4th 1289, 1295.)

Even if we were to consider the merits of appellants argument, we would not find error by the court. Both parties assert that the court did not explicitly rule on the section 366.26, subdivision (c)(1)(D), exception issue. While this may be the case, the court determined as follows:

And then I have to see if it wouldany of these exceptions apply or it would be detrimental to him to have his parental rights terminated. Neither parent complied with their plan whatsoever or barely at all. There is no evidence that either parent has had regular visits or that their contact has risen to the level that theyve developed a significant positive emotional attachment with Andrew. So none of the exceptions apply.

Appellant argues that the court applied the wrong legal test by failing to consider whether the grandmother was willing and able to adopt Andrew, or to consider the impact of removal on Andrews well-being. Appellant contends that the juvenile court determined that no exceptions to adoption existed because neither of Andrews parents had complied with their caseplans or had regular visits with him, apparently based on their reading of the above-quoted paragraph. We disagree with this reading. The court plainly turned to a consideration of all the exceptions and found none applied. We do not think the courts specific references to the parental plan and visit issues in the course of doing so means it based its determination about all the exceptions on these issues, particularly when section 366.26, subdivision (c)(1)(D)s content is unrelated to parental plans or visits and no argument was made at the hearing about the provisions applicability. Rather, the record indicates the court was silent about all the reasons for its findings about the exceptions. [W]here the trial court has failed to make express findings the appellate court generally implies such findings only where the evidence is clear. . . . (In re Marquis D. (1995) 38 Cal.App.4th 1813, 1825.) Were we to consider the merits, we would imply findings here.

As we have already discussed, the record clearly shows that the grandmother was willing to adopt the child. It is also clear that the court believed this to be the case, as it stated that Andrew was clearly adoptable if not by the grandmother, by many other families, and that Andrew needs to know that hes got a permanent home with someone, and that person looks like its going to be the grandmother. Therefore, were we to consider the merits, we would imply that the court found that section 366.26, subdivision (c)(1)(D), did not apply by application of the proper legal standard, and that such a finding was supported by substantial evidence in the form of the grandmothers testimony. (See In re Zachary G., supra, 77 Cal.App.4th at p. 810 [section 355.26 subd. (c)(1)(D) did not apply where trial court found caretaker-grandparents were willing and able to adopt].)

Appellant also argues that the case of In re Fernando M. (2006) 138 Cal.App.4th 529, applies to this case. We do not agree. In that case, the grandmother, while she ultimately indicated a willingness to adopt the child, testified that she did so only after expressing a preference for guardianship to a social worker, who told her if she did not adopt the child, he would be placed in the system to be adopted by someone else. (Id. at p. 533.) The grandmothers counsel argued to the juvenile court that the grandmother was upset by such a threat. (Id. at p. 536.) The juvenile court was dismissive of this issue, and also incorrectly indicated that it could not consider guardianship. (Ibid.) Furthermore, the juvenile court failed to give sufficient consideration to certain exceptional circumstances unrelated to the grandmothers preference, such as the potential disruption of adoption to the childs sibling relationships and to the grandmothers marriage. (Id. at p. 537.)

The facts of In re Fernando M., supra, 138 Cal.App.4th 529, are quite different than the facts in this case. There was no claim below that any social worker coerced or threatened Andrews maternal grandmother, or that the juvenile court erred about the scope of its authority regarding guardianship. Andrews maternal grandmother, although she stated a preference for guardianship, also stated her willingness to adopt Andrew and do what was best for him clearly and unequivocally. Nor was there any evidence of exceptional circumstances regarding siblings or marriages. Therefore, we do not think Fernando M. applies to this case. We also note the conclusion of the Fourth Appellate District that [w]ithout attempting to delineate the factors that would constitute exceptional circumstances, we are convinced that mere family preference is insufficient. (In re Rachel M., supra, 113 Cal.App.4th at p. 1298.) This is not contradicted by In re Fernando M.s consideration of the evidence regarding the mothers preferences and willingness to adopt, among other things.

Accordingly, appellants argument is without merit.

DISPOSITION

The judgment is affirmed.

_________________________

Lambden, J.

We concur:

_________________________

Kline, P.J.

_________________________

Richman, J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line attorney.

[1] All further statutory references are to the Welfare and Institutions Code unless otherwise stated.

[2] The appellate court did refer to certain facts gleaned from the record that it characterized as fragments and ambiguous evidence. (In re Brian P., supra, 99 Cal.App.4th at pp. 624-625.)