In re B.B.

Filed 12/4/08 In re B.B. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Kyle S. Brodie, Judge. Affirmed.

Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.

Ruth E. Stringer, County Counsel, and P. Joanne Fenton and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.

Michael D. Randall, under appointment by the Court of Appeal, for Minors.

I. INTRODUCTION

T.B. is the mother of two girls, B.B. (age five) and M.B. (age four), and a boy, F.B. (age two). The juvenile court terminated parental rights to the children and ordered them placed for adoption pursuant to section 366.26 of the Welfare and Institutions Code.^[1] Mother appeals, claiming insufficient evidence supports the courts finding that the children were likely to be adopted within a reasonable time. More specifically, mother challenged the adoptability finding based on evidence that the children suffered from multiple disabilities as a result of intrauterine exposure to drugs and alcohol.^[2] We conclude that substantial evidence supports the adoptability determinations. We therefore affirm the orders terminating parental rights and placing the children for adoption.

II. FACTS AND PROCEDURAL HISTORY

A. Background

A section 300 petition on behalf of F.B. was filed only four days after his birth in March 2006. During her pregnancy, mother tested positive for cocaine four times, most recently two weeks before F.B. was born. At the time of each test, mother went to the hospital because she believed she was going into labor. Neither mother nor F.B. tested positive for drugs at the time of F.B.s birth, however. Mother admitted using cocaine during her pregnancy and upon leaving the hospital. Mother was homeless and had no provision for the support of F.B.

B.B. and M.B. were living with their maternal grandmother. Both girls tested positive for cocaine at the time of their births in 2003 and 2004. Mother admitted having no prenatal care with any of her children. She also admitted she was addicted to rock cocaine, and, as a result, had been unable to parent or maintain suitable housing for herself and her children. She also drank whatever alcohol she could get her hands on. All three of her children had different fathers, whose whereabouts were unknown.

Mother was very up front and honest with DCS concerning her drug use, and admitted she was not ready to parent her children due to her drug addiction. In April 2006, she enrolled in a 90-day residential treatment program at Maple House Women and Children Program. In June 2006, while the girls were living with mother at Maple House, mother grabbed B.B. by the arm and slammed her to the ground. Mother had also been seen pulling both girls hair and slapping them in the face. Mother initially admitted the truth of these allegations, but later denied slamming B.B. to the ground. Section 300 petitions were filed on behalf of the girls in Riverside County in June 2006.

Earlier, the maternal grandmother had been asked to assume legal guardianship of the girls, but failed to do so. As of June 2006, the grandmother did not have her own residence and was renting a room from someone in San Bernardino. Mother said the grandmother had calls from child protective services when mother was a child due to her own cocaine addiction. The grandmother had since stopped using cocaine due to her failing health. Mother and her three siblings each had different fathers. The grandmother had cared for the girls until they went to live with mother at Maple House in May 2006. There were reports of general neglect concerning the girls in May 2003, December 2003, and March 2006.

In May 2006, the Juvenile Court of San Bernardino County assumed jurisdiction over F.B., and continued him in foster care. In July 2006, the Juvenile Court of Riverside County assumed jurisdiction over the girls and continued them in foster care. In both cases, mother was granted services and visitation. The girls cases were later transferred to San Bernardino County and consolidated with F.B.s case.

Mothers participation in her case plans was sporadic and ultimately unsuccessful. Although she at times appeared to be trying very hard to stay sober, she relapsed several times during 2006 and 2007. Finally, in July 2007, DCS recommended that mothers services be terminated for all three children, and her services were terminated in August 2007. A section 366.26 hearing for all three children was originally scheduled for December 18, 2007. The hearing was continued several times and was held on May 22, 2008.

B. The Childrens Foster Family Placements

F.B. was with the same foster family from the time he was detained shortly after his birth in March 2003, until August 2007. The girls lived with a Spanish-speaking foster family for approximately one year, until August 2007.

On August 27, 2007, all three children were placed in a two-parent foster family, the R.s. Mrs. R. stayed at home and home schooled the couples four children. She had previously cared for a five-year-old girl with numerous behavioral difficulties, including sexually acting out. She spent tons of time working with this little girl and did extremely well with her. The foster parents were planning to adopt the girl, but she was returned to her parents. Initially, the R.s were willing to consider adopting mothers children.

Then, on January 25, 2008, Mrs. R. asked that the children be removed from her home. F.B. had had been vomiting for several days, and the social worker told Mrs. R. to take F.B. to the hospital. Mrs. R. became angry with the social worker and asked that the children be removed within seven days. On January 30, a new foster home was found for the children.

In early February 2008, the children were placed in a two-parent foster home with Mr. and Mrs. D. They remained in this home through the time of the section 366.26 hearing on May 22, 2008. As of that time, the D.s had decided not to adopt the children, although they had previously expressed a willingness to consider adopting them. They were willing to care for the children until an adoptive family was found, however.

Mother tested positive for cocaine once during February 2008 and twice during March 2008. By April 28, 2008, she was terminated from the Vista Treatment Program.

C. The Childrens Adoptability Assessments

In an adoptability assessment and status report filed on November 21, 2007, dated December 18, and signed by social worker (SW) Judith Russell, DCS revealed that the Inland Regional Center had diagnosed B.B., then age four, with mild mental retardation. B.B. was also exhibiting learning and processing delays. For a day or two before and after visits with mother, B.B. threw tantrums, ignored directions, withdrew, and wet her bed. The assessment also reported M.B., then age three, was exhibiting enuresis and encopresis, and was smearing her feces. She had speech delays, was apparently unable to process information or comprehend simple commands, and also exhibited tantrums and emotional instability after visits with mother. According to her caregivers, M.B. also showed signs of mild retardation. Inland Regional Center had assessed M.B. but had not diagnosed her. F.B. was only 18 months old in November 2007. Due to his young age, it was difficult to determine what, if any, delays he may have had at that time.

In the November 21 assessment, DCS concluded that none of the children were suitable for adoption at that time due to their extreme behavioral issues and delays. In addition, all three children were still in the process of being evaluated to determine their needs, and until their needs could be fully assessed it was too early to search for an adoptive family who could meet their needs. The assessment stated, It is a challenge to find adoptive parents willing to adopt children with retardation and Fetal Alcohol Syndrome (FAS), and FAS had yet to be ruled out. Accordingly, DCS recommended continuing the section 366.26 hearings for six more months.

On November 7, DCS filed a packet requesting that the juvenile court find mothers current visitation plan detrimental to the children and reduce her visits to once a month for two hours. The packet briefly reported that F.B. was very distressed both during and after visits, and tended to cling to his caretaker for two days following the visits. B.B. and M.B. were having acting out behaviors which gravely escalated for two days after the visits and before the visits if B.B. knew the visit would occur. M.B.s acting out behaviors included smearing feces and bedwetting.

At a hearing on December 5, the juvenile court ordered that mother have one more visit with the children before January 1, 2008, after learning she had not visited the children for six weeks. The court did not rule on the request to reduce the frequency of mothers visits. On December 18, DCS withdrew its request to reduce the frequency of mothers visits, after it was discovered that the girls behavioral problems during and around the time of the visits were due to a language barrier issue.

The language barrier issue was discussed in a status report filed on December 10 and dated December 18. Since the time of the November 21 adoptability assessment, it had been discovered that B.B.s and M.B.s apparent processing delays were actually due to their former placement with a Spanish-speaking family. B.B. knew more Spanish than English, and was not responding when spoken to in English. She was throwing tantrums, ignoring directions, withdrawing and wetting her bed when spoken to in Englishthe same behaviors she had been exhibiting before and after visits with mother. M.B. was still exhibiting speech delays, enuresis and encopresis, and had problems with following simple commands and directions. But as with B.B., it was believed M.B.s processing delays were due to her limited understanding of English and better understanding of Spanish.

In a section 366.26 report filed on April 8, 2008, and dated April 16, DCS reported that F.B. still had numerous social and mental delays and his sisters B.B. and M.B. exhibited most of the same behaviors. All three children also had very extreme behavioral delays, problems and health related issues. It was recommended that the children be continued in a planned permanent living arrangement (PPLA) with their current caretakers for six more months, by which time it was expected that their evaluations and assessments would be completed.

Then, in an addendum report filed on April 25, 2008, and dated May 7, DCS changed its original adoptability assessment and opined that all three children are suitable for adoption at this time due to their ages of 2, 3, and 4 years old. They were still having speech delays, but were no longer exhibiting negative behaviors. The addendum report included a DMSCC SART Preliminary Summary of preliminary diagnoses and treatment recommendations for the children. The summary was dated February 20, 2008, and the preliminary assessments were performed in January 2008. The children were still in the process of being evaluated and their treatment plans had not been fully implemented.

The preliminary diagnoses for B.B and M.B. stated, among other things, that they had mild mental retardation, depressive disorder, and posttraumatic stress disorder. They were irritable, agitated, often anxious, fearful and withdrawn. They also had suspected intrauterine drug exposure (alcohol and cocaine). The preliminary diagnosis for F.B. did not indicate he was mentally retarded, but did indicate he had depressive disorder, intrauterine exposure to cocaine and marijuana, and many of the same behavioral problems exhibited by the girls.

The childrens permanent physical disabilities had yet to be fully assessed. F.B. possibly had microcephaly. B.B. was short in stature and possibly had brachydactyly, a genetic condition in which the bones of the fingers and toes are smaller than normal. B.B. also had asthma that required an inhaler.

D. The Section 366.26 Hearing

A section 366.26 hearing for all three children was held on May 22, 2008.

SW Judith Russell testified at the hearing. All three children were still with the foster family with whom they had been placed in January or February 2008, and were participating in the SART program. The SART program is an early childhood program that identifies delays in children and the means to address those delays before the children reach school-age. It offered a milieu of different treatments, assessments, therapy, primarily play therapy for preschool-age children. SW Russell was unsure whether SART diagnosis and treatment plans were to be used solely for educational purposes or also for more general purposes.

F.B. was age two at the time of the hearing. Other than some speech delays, he appeared to be developmentally on track. M.B., then age three, also had some speech delays, but was demonstrating no negative behaviors, including smearing her feces, and her cognition and perception appeared to be improving. B.B., then age four, also had some delays but exhibited no negative behaviors that, according to SW Russell, would make her unadoptable.

According to SW Russell, B.B. and M.B. had been preliminarily diagnosed with mild mental retardation. She had observed no severe pathology or even retardation in terms of development in either of the girls, however, and believed the preliminary diagnosis was based on the girls young ages, their history of neglect, and to the process of adapting to living in stable home environments. She also believed that the childrens speech delays or apparent cognitive functioning delays may have been based on hearing delays, and the children were soon to be assessed for hearing delays.

The unwillingness of the childrens current foster parents to adopt them was not based on any negative behaviors on the part of the children. The current foster parents were new to the foster care process, and did not have an exceptional desire to provide permanency to the children. They were willing to care for the children until a permanent adoptive home could be found, however. The children were attached and bonded as a sibling group.

SW Russell opined that, within a reasonable time, an appropriate adoptive home could be found for the children. The process of searching for an adoptive home had already begun. SW Russell also opined that, even if the girls were mildly mentally retarded, it would not necessarily be more difficult to find an adoptive home for them. In SW Russells experience, some families . . . do not want children who are mildly retarded; there are others who do. Its a preference.

Mother did not testify. Following the close of the evidence, counsel for mother argued that DCS had not met its burden of showing that the children were likely to be adopted within a reasonable time, particularly in view of the girls past behavioral problems and mental-retardation label. County counsel urged the court to follow DCSs recommendation and find that the children were adoptable. Minors counsel also argued that the children were adoptable, and also asked that the court give the girls preliminary mild mental retardation diagnoses appropriate weight in light of their young ages and participation in the SART program.

The juvenile court said it initially had some concerns about the adoptability question, based on the mild mental retardation diagnosis for the girls. But the court said it found the diagnosis suspect, after hearing SW Russells testimony and reviewing the reports. The court was reluctant to call [the diagnosis] incorrect, but noted, it does not appear to be a diagnosis that has endured for the girls. The court further observed that, according to the reports, the children had stabilized in their current placement over the preceding four or five months and their behaviors had improved significantly. The court concluded, Perhaps what were seeing here are the benefits of stability.

Accordingly, the court followed the recommendation of DCS and minors counsel. It found by clear and convincing evidence that the children were likely to be adopted within a reasonable time and terminated parental rights. Mother appealed.

III. DISCUSSION

A. Applicable Law

In order to terminate parental rights, the juvenile court must find by clear and convincing evidence that the child will likely be adopted. ( 366.26, subd. (c)(1).) We uphold the juvenile courts adoptability determination if 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. ( 366.26, subd. (c)(1); In re Asia L. (2003) 107 Cal.App.4th 498, 509-510 (Asia L.).) Clear 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.] [Citations.] (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205.) Still, 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. [Citation.] (In re Josue G. (2003) 106 Cal.App.4th 725, 732.)

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.] (In re Brian P. (2002) 99 Cal.App.4th 616, 624.) It is not necessary that the child already be placed in a preadoptive home or that a prospective adoptive parent be willing to adopt the child. ( 366.26, subd. (c)(1); In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) But there must be convincing evidence of the likelihood that adoption will take place within a reasonable time. [Citation.] (In re Brian P., supra, at p. 624.)

B. Analysis

Mother argues there is insufficient evidence to support the juvenile courts determination that the children were likely to be adopted, principally because all three children had numerous birth defects and multiple disabilities as a result of their intrauterine exposure to drugs and alcohol. She argues that the present case is analogous to Asia L., supra, 107 Cal.App.4th at page 512, in which the appellate court found insufficient evidence to support the juvenile courts determination that three children, James, Asia, and Joel, were likely to be adopted within a reasonable time. We find the facts of Asia L. distinguishable for a number of reasons.

The social worker in Asia L. opined that James and Asia were adoptable but were in need of specialized placements due to their extreme hyperactivity. (Asia L., supra, 107 Cal.App.4th at pp. 510-512.) James and Asia were around ages seven and five, respectively, at the time of their permanency planning hearing. (Id. at pp. 503-504.) In addition to hyperactivity, James suffered from asthma and early exposure to lead, lacked appropriate socialization skills, required constant supervision, and was often out of control in his first grade classroom to the point that he may not be able to be maintained in the classroom. (Id. at p. 510.) He had been taking Ritalin with mixed results. (Id. at p. 511.) Asia also suffered from enuresis and had problems with not listening, not staying still, stealing, disrupting other children, and pulling her hair out. (Ibid.) Both children were physically healthy and developmentally on target, however. (Id. at pp. 510-511.)

The court in Asia L. reasoned that, although the ages and physical health of James an Asia weighed in favor of their adoptability, their emotional and psychological development present[ed] a potential obstacle to adoption. (Asia L., supra, 107 Cal.App.4th at p. 512.) Moreover, the court observed that, although the department had recognized that James and Asia would require specialized placement, it failed to provide evidence of approved families willing to adopt children with the developmental problems faced by James and Asia. (Ibid.) In short, the court found insufficient evidence to support the social workers conclusion that James and Asia were adoptable. (Ibid., citing In re Brian P., supra, 99 Cal.App.4th at p. 624.)^[3]

Here, in contrast to the facts of Asia L., DCS presented evidence that there were families willing to adopt children with the developmental needs of B.B., M.B., and F.B.including mental retardation, if in fact that preliminary diagnosis holds for any of the children. SW Russell responded yes when asked whether there were homes in the foster care system in which children with special needs may be placed. She also said there are families who specifically want children who are mentally retarded. Its a preference. Also, in her opinion, none of the children were in need of a specialized placement as of May 2008. Mr. and Mrs. D. were not specialized foster parents and were meeting the childrens needs at that time.

Furthermore, and unlike the children in Asia L., at the time of the section 366.26 hearing, none of the children were exhibiting negative behaviors that would impair their adoptability. Although, as of April 2008, they still had numerous social and mental delays, including speech delays, they were no longer exhibiting negative behaviors, including smearing feces, by the time of the May 2008 hearing. In fact, they had shown significant behavioral improvement between the time of their January 18, 2008, SART evaluations and the May 2008 hearing.

It is also notable that the girls most significant behavioral problems, including bedwetting and smearing feces, were apparently attributable to their having been placed in a Spanish-speaking family for a period of one year prior to August 2007. The girls language-barrier problem was not discovered until December 2007, near the end of their subsequent placement with the English-speaking R. family. Once the language-barrier problem was discovered, the girls behavior improved. Their current foster parents, Mr. and Mrs. D. were not reporting any similar behavioral problems.

The court in Asia L. further observed that the willingness of the foster parents to explore adoption was too vague to be considered evidence that some family, if not this foster family, would be willing to adopt these children. (Asia L, supra, 107 Cal.App.4th at p. 512.) Here, however, DCS does not advance a similar argument; it does not argue that the initial willingness of the childrens current foster parents, Mr. and Mrs. D., to consider or explore adopting the children constitutes evidence that some other family will be willing to adopt them. (Cf. In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650 [[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 some other family].)

Instead, DCS argues only that the childrens young ages and recent behavioral improvements constitute sufficient evidence of their adoptability. We agree. As noted, the question 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. (In re Brian P., supra, 99 Cal.App.4th at p. 624.) And here, substantial evidence supports the juvenile courts finding that B.B., M.B., and F.B. were likely to be adopted within a reasonable time. The evidence includes the childrens young ages, recent improvements in behavior, and absence of negative behavioral traits, notwithstanding their ongoing developmental delays and physical defects.

Lastly, mother further argues that SW Russell was not qualified as an expert to challenge or question the permanency of the February 28, 2008, preliminary diagnosis by the Desert/Mountain SELPA Childrens Center that the girls had mild mental retardation. Mother also argues that SW Russells testimony was contrary to the record, in view of all three childrens intrauterine exposure to drugs, and the Inland Regional Centers previous diagnosis that B.B. had mild mental retardation. Mother cites numerous studies showing that children with fetal alcohol syndrome and intrauterine drug exposure suffer permanent lifelong disabilities.

But even if all three children are permanently mentally retarded, have other special needs that have yet to be discovered, and will require special care and life-long treatment, substantial evidenceparticularly the childrens young ages and absence of negative behaviorssupports the juvenile courts determination that they were likely to be adopted within a reasonable time.

IV. DISPOSITION

The May 22, 2008, orders terminating parental rights and placing the children for adoption are affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

J.

We concur:

/s/ McKinster

Acting P.J.

/s/ Richli

J.

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

^[2]Counsel for minors filed a letter brief joining in the San Bernardino County Department of Childrens Services (DCS) brief and requesting that the juvenile courts orders be affirmed.

^[3] For the same reasons, the court in Asia L. found insufficient evidence to support the juvenile courts finding that the youngest child, Joel, was likely to be adopted within a reasonable time. Joel was age two and one-half at the time of the hearing and, like James and Asia, suffered from emotional and psychological problems. Although he was described as cute, smart, happy, and developmentally on target, Joel was hyperactive and had a temper, asthma, and intrauterine exposure to drugs. (Asia L., supra, 107 Cal.App.4th at p. 512.)