In re Dario M.
Filed 4/17/13 In
re Dario M. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
In re DARIO M., et al., Persons
Coming Under the Juvenile Court Law.
TULARE COUNTY HEALTH AND HUMAN
SERVICES AGENCY,
Plaintiff and
Respondent,
v.
CYNTHIA M.,
Defendant and
Appellant.
F065465
(Super.
Ct. No. JJV063289)
THE COURT
name="_ftnref1" title="">*
APPEAL from
an order of the Superior Court of
County. Jennifer Shirk, Judge.
Mary R.
Williams, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kathleen
Bales-Lange, County Counsel, John A. Rozum, and Amy-Marie Costa, Deputy County
Counsel, for Plaintiff and Respondent.
-ooOoo-
Cynthia M.
(mother) appeals from an order terminating parental rights to her five
children. (Welf. & Inst. Code, §
366.26.)
that the children were likely to be adopted was not supported by substantial
evidence. We disagree and affirm the
court’s order.
FACTUAL AND PROCEDURAL HISTORIES
Dependency jurisdiction first
was taken over mother’s oldest four children, then seven-year-old Dario,
three-year-old Angelica, two-year-old Daniel, and 18-month-old Julissa, in
2008. The
Agency (Agency) filed a juvenile dependency petition in September of that
year, after police were called when mother’s neighbor saw Daniel wandering in
the street wearing only a very soiled diaper.
The responding officer found two other children, Angelica and Julissa,
walking down the middle of the road; Angelica was wearing only panties, while
Julissa was wearing only a soiled diaper.
Mother eventually came out of the home and said the children were
hers. The officer, who recognized mother
from previous arrests for being under the influence of methamphetamine,
believed mother was under the influence.
Mother and the children were living
in the paternal grandparents’ garage.
The children’s father, Dario A. (father), left them the month
before. Mother told the social worker she
began using methamphetamine at the age of 13 and she wanted help for her
substance abuse problem. Dario reported
that when he was in trouble he was hit a lot with an open hand. He also described
and stated that both mother and father slept during the day.
The
juvenile court found true the petition’s allegations that both parents
non-accidentally inflicted serious physical harm on Dario, which placed the
other children at risk of harm (§ 300, subd. (a)), and mother and father failed
to protect the children and their substance abuse placed the children at risk
(§ 300, subd. (b)). The children were
removed from their parents’ custody and placed together in a foster home. Dario and Angelica were assessed for mental
health services; Dario was diagnosed with adjustment disorder with mixed
anxiety and depressed mood, while Angelica was diagnosed with adjustment
disorder with mixed disturbance of emotions and conduct. They began receiving therapy.
At the
March 2009 review hearing, the juvenile court terminated father’s services,
continued mother’s services, and kept the children in out-of-home
placement. In June 2009, the Agency
returned the children to mother’s care and custody; the juvenile court ordered
the children returned to mother on family maintenance in September 2009. The next month, mother gave birth to her
fifth child, Andrew, whose father is also Dario A.
Mother
received family maintenance services
until April 2011, when the juvenile court granted mother custody of the
children and terminated dependency jurisdiction. At each family maintenance review, the social
worker reported the children were happy, well-adjusted, doing fine in mother’s
care, enjoyed playing with each other, and did not have significant medical or
emotional/behavioral problems, except for a need to follow-up on dental work
that began while they were in foster care.
Mother had difficulty getting Dario to school on time, and ensuring that
Dario and Angelica attended their therapy appointments.
By the February 2011 review
hearing, when the Agency recommended dismissal of dependency, Dario was to be
discharged from therapy in March, as he was doing well and did not need
continuous services. Angelica was
discharged from therapy after being reassessed for mental health services in
November 2010, as services were not
medically necessary; Angelica was doing well and was no longer aggressive.
The February review hearing was
continued because mother, who had been living with her boyfriend and the
children at his parents’ house, unexpectedly had to move. The family moved to the maternal
grandmother’s home, which was too small for all of them. Mother said the move was temporary, as she
and her boyfriend were looking for a place to live. The court ordered that four-year-old Daniel
be referred to the Central Valley Regional Center (CVRC) for evaluation, as he
was not talking much and did not like to be touched or hugged.
By April 2011, mother and her
boyfriend were still living with the maternal grandmother and looking for
housing. The Agency continued to
recommend dismissal. On April 26, 2011,
the juvenile court granted mother sole legal and physical custody of the
children, and terminated dependency
jurisdiction.
The
Current Dependency Case
Less than a
month later, on May 20, 2011, mother was arrested for child endangerment and
being under the influence of a controlled substance. She left all five children at home without
adult supervision for about 30 minutes while she went to purchase
methamphetamine. When the maternal
grandmother, Flora M., came home, she found the children alone. To teach mother a lesson, Flora left the
house with the children. When mother
returned home, the children were missing.
Mother called the police. Flora
returned with the children after the responding officer called her. Mother tested positive for
methamphetamine.
On May 24,
2011, a juvenile dependency petition was filed alleging that mother’s substance
abuse and failure or inability to supervise or protect the children placed them
at substantial risk of harm (§ 300, subd. (b)); the children were left without
provision for support, as father’s whereabouts were unknown (§ 300, subd. (g));
and the children were at risk of suffering the same abuse or neglect as in the
prior dependency case (§ 300, subd. (j)).
The next day, the juvenile court
ordered the children detained. The
Agency could not locate a foster home that would take all of the children, so
it placed Dario and Daniel together in one foster home, and Angelica, Julissa
and Andrew in another. On June 17, 2011,
the social worker moved Angelica, Julissa and Andrew to their maternal
great-aunt’s home after the foster parent asked that Julissa be removed due to
her aggressive behaviors.
A Court Appointed Special Advocate
(CASA) appointed for the children visited them in their foster homes. Dario and Daniel’s foster mother reported
that the boys were sharing a room. They
played rough with each other; sometimes she worried that Dario was too rough
with Daniel. Nine-year-old Dario was in
the fourth grade; he was below basic in reading and writing, and progressing in
language conventions and math. In a
written note, his teacher stated he had a long way to go in order to do well,
and that many things prevented him from learning, such as immaturity, behavior
and effort. The foster mother suspected
both boys had cavities and would need dental treatment. Five-year-old Daniel had trouble following
directions; he had a temper and often would throw tantrums, in which he would
throw himself down on the floor. Daniel
was a picky eater and ate very little.
Daniel was difficult to understand, but he talked more than when the
CASA previously saw him while he was in mother’s custody. Daniel did well on the “Social Emotional
ASQ,†but struggled on the fine motor and problem solving skills of the
“Developmental ASQ.â€
The CASA saw six-year-old Angelica,
four-year-old Julissa and one-year-old Andrew in their first foster home. Angelica, who was in kindergarten, was
protective of her siblings and usually well behaved. Angelica and Julissa shared a room, but the
foster mother often found them sleeping in the same bed. Julissa would cry when hungry instead of
asking for food. She did well on the
“Developmental and Social Emotional ASQ.â€
The foster mother reported that Julissa was aggressive with Angelica,
who would hit her back, but the girls were not aggressive with Andrew or the
foster mother’s daughter. Julissa was
quiet, did not like to share, and rarely laughed. The foster mother was concerned about Julissa’s
tantrums, in which Julissa could scream up to 20 minutes and throw anything she
could grab, as the tantrums were negatively impacting the foster mother’s
daughter. Andrew was a good baby, who
was generally quiet and rarely got upset.
He could not feed himself, so the foster mother would feed him. The CASA recommended a concurrent plan of
adoption as a sibling group should mother fail to reunify.
In a
jurisdiction/disposition report filed on June 29, 2011, the Agency recommended
that (1) the children be declared dependents of the court, (2) mother not be
offered reunification services pursuant to section 361.5, subdivision (b)(13),
services pursuant to section 361.5, subdivision (b)(10),
within 120 days to determine a permanent plan for the children.
The report described the children’s
current status. At the time of
detention, all of the children were upset and crying at the thought of being
removed from their home. Dario, Angelica
and Julissa were not CVRC clients, did not exhibit behaviors that would warrant
a CVRC referral, and appeared to be meeting developmental milestones. Julissa could walk, talk, verbally express
her wants and needs, and communicate her feelings. While Andrew was not a CVRC client and the
great-aunt did not believe he needed a referral, an Agency nurse arranged to
have him assessed to determine whether a referral was needed. Mother had not followed through with the CVRC
referral for Daniel, so the social worker rescheduled an intake
appointment. While in mother’s care,
Dario moved schools twice. During the
2009-2010 school year, Dario frequently missed or was late to school, his
grades suffered and he had difficulty completing assignments.
Dario, Angelica, Daniel and Julissa
were being evaluated for mental
health counseling. Andrew was too
young for mental health intervention and did not exhibit behaviors warranting
therapeutic intervention. The great-aunt
reported that Angelica was extremely quiet and withdrawn, while Julissa was
exhibiting behaviors beyond her control, such as being aggressive, hitting,
biting, screaming, breaking things, and not following directions. It appeared to the social worker that Julissa
was having a difficult time adjusting and coping. Andrew was adjusting well to the great-aunt’s
home and she was not experiencing any major issues with him. Dario and Daniel enjoyed their foster home
and, with the exception of sibling rivalry, appeared to be doing well.
The social worker had not found a
home that was willing or able to take all five children. The social worker had not been successful in
her efforts to find a relative willing to take Dario and Daniel. The Agency wanted to find relatives for them
so the five children could be connected even if they did not live together in
one home.
An adoptions assessment for all
five children was completed on June 29, 2011.
The assessment deemed the children adoptable, but since this was a
sibling set and the children were not placed together, the Agency wanted to
continue to seek other relatives to take Dario and Daniel to allow ongoing
contact with the other three siblings.
If other relatives could not be located, the Agency would try to locate
a non-relative adoptive family who would be open to ongoing sibling
contact. The great-aunt was willing to
adopt the three siblings in her care.
She was also willing to take Dario and Daniel, but she did not have room
for them in her home.
A jurisdictional hearing was held
on July 12, 2011. After mother submitted
on the social worker’s reports, the juvenile court found the petition’s
allegations true and set a contested dispositional hearing. At the August 17, 2011 dispositional hearing,
the juvenile court found section 361.5, subdivision (b)(13) applied to mother,
section 361.5, subdivision (b)(10) applied to father, and denied them both
reunification services. A section 366.26
hearing was set for December 9, 2011.
The Agency
filed a section 366.26 report on December 1, 2011, which recommended adoption
with termination of parental rights. The
children were in the same placements.
Dario was in the fifth grade, enjoyed school and was participating in an
afterschool program that helped him complete his homework. He was getting a C- in language conventions,
a D+ in math, a C+ in reading, and an A- in spelling.
Dario was participating in
counseling services with therapist Noushafarin Tabatabi. He was diagnosed with adjustment disorder,
unspecified. When first assessed in May
2011, the foster mother reported Dario had temper tantrums, nightmares, and
difficulty following redirection, and bit his nails. He and Daniel argued often. The foster mother also reported Dario
demonstrated highly competitive behaviors with his siblings, which often
resulted in sibling arguments and caused Dario to act aggressively towards
them. He refused to take responsibility
for his part in sibling conflicts. Dario
sometimes acted out in public settings, such as arguing with siblings or acting
impulsively, where it was difficult to redirect him. Dario’s self-soothing and anxious behaviors
had decreased. During therapy, Dario
expressed concern about whether he would live with mother in the future. Tabatabi believed Dario might take on the
roll of a “surrogate†spouse, which is a typical parent-child dynamic when
substance abuse issues are present in the home, and that he would continue to
take on an adult role with his siblings.
Tabatabi reported Dario was making some progress toward reaching the
overall therapeutic goals and would benefit from ongoing mental health services
to help him continue to work toward engaging positively with his siblings,
responding to redirection by adults, and increasing his insight regarding how
his controlling behaviors may be attributed to mother’s substance abuse and
overall neglect.
Angelica, who was in the first
grade, was also in the afterschool program that helped her complete her
homework. She enjoyed school and was
doing well there without any concerns.
Angelica was participating in counseling services; her therapist was
Michelle Forsyth. She had been diagnosed
with adjustment order, unspecified, but as treatment progressed, Forsyth saw
Angelica demonstrate many symptoms and behaviors consistent with reactive
attachment disorder of infancy or early childhood (RAD). The great-aunt was participating in family
and collateral parenting support sessions, while Angelica was attending weekly
individual therapy, as well as a weekly school based social skills group. Angelica was beginning to identify and
verbalize her feelings related to the previous home situation. Angelica’s defiant behaviors toward the
great-aunt and aggression toward a same aged peer in the home had increased
some. Angelica struggled to accept
responsibility for her actions and often blamed others. The great-aunt was learning and implementing
RAD parenting techniques; it was important for Angelica to remain in a
structured environment where she would receive supervision, consistency and
affection, and to begin to learn to reattach and bond with caregivers.
Daniel completed his CVRC
assessment on September 26, 2011, but the results were still pending. He was in kindergarten and participated in an
afterschool program. He recently was
awarded a certificate “for always doing his best.†He was participating in counseling services
with therapist Noushafarin Tabatabi. He
was diagnosed with adjustment disorder, nonspecified. Daniel continued to struggle with speech
articulation. He had little difficulty
adjusting to starting school and was progressing academically. His anxious reactions to new settings were
decreasing. The foster parent reported
Daniel was able to verbalize his needs, and was more compliant to redirection
when away from Dario. He continued to
exhibit self-soothing behaviors that appeared to be anxiety based. Tabatabi noted Daniel was demonstrating an
increased level of functioning at his foster home and a decreased level of
anxiety in new settings. Tabatabi opined
that continued mental health services would allow Daniel to work toward the
development of appropriate social skills, decrease anxiety symptoms and
increase the ability to sustain attention for a significant amount of time.
Julissa was participating in
counseling services with Michelle Forsyth.
She was diagnosed with RAD and physical abuse. Julissa had made progress in decreasing the
duration and severity of her tantrums as a direct result of the great-aunt’s
consistent efforts and modeling of acceptable behavior. Julissa struggled to comply with directives
without arguing. During therapy
sessions, she struggled to respect personal boundaries and limits set in
session, and was defiant when redirected.
She was responsive to her great-aunt during therapy sessions and
appeared to seek out affirmation. With
consistency in the home environment and RAD parenting, Forsyth was hopeful
Julissa would continue to decrease her negative behaviors and increase
compliance, eventually securing attachment to a primary caregiver. Forsyth opined that, due to the severity of
the reported abuse and intensity of Julissa’s symptoms and behaviors, it was
important for her to continue in therapy, with an emphasis on the care
provider’s parenting techniques. Forsyth
further opined it was important for Julissa to live in a structured environment
where she could receive supervision, consistency and affection, and begin to
learn to reattach and bond with caregivers.
The great-aunt had been identified
as a prospective adoptive parent for Angelica, Julissa and Andrew. The great-aunt had seen mother struggle with
her past addictions and wanted to provide stability for the three children, who
she loved and was willing to adopt. She
was capable of meeting their needs, as she had successfully cared for them since
June 2011.
The social worker explained that
the children were deemed adoptable, as they were healthy and happy, with no
significant medical or
developmental problems. The Agency
identified adoption as the best permanent plan for the sibling group. The social worker opined that given the
children’s characteristics, including their ages, mental health status, and
general good health, there were many foster-adopt families who would be willing
to adopt the children aside from the current prospective adoptive parent. The social worker further opined adoption was
likely. The Agency, however, had not
found a home that was willing to take all five children. The social worker believed removing Angelica,
Julissa and Andrew from their current placement would be detrimental, as they
had transitioned comfortably to the placement and begun to form a bond with the
maternal great-aunt. The Agency wanted
to find an adoptive home willing to take Dario and Daniel that would be open to
sibling contact.
In a report filed on December 7,
2011, the CASA reported the results of assessments of the children in their
placements. The foster mother of Dario
and Daniel stated that therapy had helped to reduce the acting out and
aggression Dario exhibited toward Daniel, and Dario was doing much better. The CASA observed positive interactions
between the two boys. Daniel was
well-behaved. The CASA observed that
Daniel did not make much eye contact and his speech was somewhat unclear. Therapy had reduced his anxious
behaviors. He scored well on his
social-emotional “ASQ,†and was well on track to meeting his developmental
milestones. Dario was wearing glasses
and appeared well-behaved as he shared toys with Daniel.
Andrew had been diagnosed with a
heart murmur, but according to the great-aunt, the doctor said it was not
serious. She, however, was concerned
about Andrew, as it was hard to get his attention, he stuffed food in his mouth
until he gagged, and put non-food items in his mouth even after eating. The great-aunt also reported Andrew had
trouble sleeping at night and often rocked back and forth while sitting on the
couch. Andrew scored far above the
cutoff score for his social-emotional “ASQ,†which was a concern, and scored
low on the communication portion of the developmental “ASQ,†although he scored
very well on the remaining sections.
Four-year-old Julissa was not enrolled in school at her therapist’s
recommendation because she was deemed to be a threat to others and to
society. The great-aunt had observed
slight improvement with Julissa’s tantrums, which were less frequent and
intense, but she still became aggressive when she got mad. Julissa’s score on her social-emotional ASQ
was two times the cutoff score, which was a concern, and was mostly inattentive
during the developmental ASQ. She scored
low on most sections, with the exception of the problem solving section, in
which she scored well. The great-aunt
was willing to adopt all of the children, including Dario and Daniel. The foster mother was not sure if they would
be willing to adopt.
On December
7, 2011, mother filed a request to change the juvenile court’s order from
denying her reunification services to granting her services. (§ 388.)
The juvenile court denied the request without a hearing, as the request
did not state new evidence or a change of circumstances.
On January
5, 2012,
366.26 hearing. The Agency submitted on
its reports and the juvenile court took judicial notice of the case file.
Mother testified that the children had always resided together as a sibling
group, they played together during visits, and Julissa, Andrew and Daniel were
very close and had a bond with each other.
Mother testified the children had special bonds with each other, but
Daniel and Julissa’s bond was deeper because they are so close in age. Dario had a very deep bond with his siblings.
County counsel asked the juvenile
court to find the children adoptable despite their behavior problems and
terminate parental rights. The attorney
for Angelica, Julissa, and Andrew, also argued for termination of parental
rights. The attorney for Dario and
Daniel argued adoption at that time was not appropriate because the children
were strongly bonded to each other, and asked the juvenile court to apply the
sibling exception to termination of parental rights. Mother’s attorney argued that parental rights
should not be terminated because of mother’s relationship with the children and
because the sibling exception applied.
The juvenile court found that
mother had not met her burden of establishing the parent/child relationship
exception to termination of parental rights applied. The juvenile court asked
the parties to consider the application of section 366.26, subdivision (c)(3),
which allows the court to identify adoption as the permanent placement goal
without terminating parental rights and order the Agency to make efforts to
locate an appropriate adoptive family within a maximum of 180 days, where
(1) termination of parental rights would not be detrimental to the
children, and (2) the children have a probability for adoption, but were
difficult to place for adoption because there was no identified or available
prospective adoptive parent due to the children’s membership in a sibling
group. The parties all submitted on that
issue. In explaining that the permanent
plan goal would be adoption, the juvenile court stated it was finding at that
time that the sibling exception to termination of parental rights contained in
section 366.26, subdivision (c)(1)(B)(v) was applicable, as that section would
not preclude adoption if an adoptive placement could be found for all of the
children.
The juvenile court thereafter
specifically found that termination of parental rights would not be detrimental
to the children, and the children had a probability for adoption but were
difficult to place due to the sibling relationship. The court continued the matter for 180 days
and ordered that efforts be made to locate an appropriate adoptive family. The court ordered that if a placement were
found that could accommodate all five children, the children’s attorneys must
be notified before any move. The court
also stated it was not precluding the possibility of the children being placed
in separate adoptive families as long as the adoptive placements included
essentially open adoptions that would allow for continued sibling contact.
On May 29,
the Agency filed a section 366.26 report, in which it recommended termination
of parental rights and adoption for the children. The report contained updates on the
children. They were deemed adoptable. The children presented as healthy and happy,
with no significant medical or developmental problems. Daniel’s CVRC evaluation had been received;
he did not meet the criteria to receive CVRC services. He was referred to speech therapy at
school. He received the student of the
month award in March, for having a perfect score on addition and subtraction.
The social
worker opined that adoption was the best permanent plan and given the
children’s characteristics, including their age, mental health status, and
general good health, there were foster-adopt families willing to adopt them. The Agency had found an adoptive home for all
the children together. The prospective
adoptive parents were willing and able to adopt all of the children. On May 4, Julissa and Andrew were placed with
the prospective adoptive parents. The
Agency was waiting until the three older children, Dario, Angelica and Daniel
completed their school years before placing them with the prospective adoptive
parents. The prospective adoptive
parents were a married couple in their early 30’s, who had always wanted
children of their own but had not been successful in having any, and adopting
the children provided a perfect opportunity for them to have the big family
they desired. They met the children for
the first time on April 5, and transitional visits began thereafter. The prospective adoptive parents were
committed to the children and to a plan of adoption.
Dario and
Daniel’s therapist, Tabatabi, reported on their progress in therapy as of
May. Dario appeared to be decompensating
in his overall functioning; he had become increasingly antagonistic toward
Daniel, refused to take responsibility for his choices and blamed others for
his negative choices. He recently
required crisis intervention services as he made comments of being unhappy and
“wanting to jump out of [a] car.â€
Tabatabi believed the symptoms were a possible reaction to ongoing
visits with the prospective adoptive parents.
While Dario “liked†the visits, he was exhibiting ambivalence and
anxiety-based symptoms as visits with mother were decreasing concurrently. Tabatabi assumed Dario had come to a
conclusion regarding his future placement, and noted that as Dario had not been
informed of any pending placement changes, he had begun to retreat from his
current placement by engaging in defiant and oppositional behaviors. In contrast, Daniel had demonstrated areas of
significant progress, as his level of antagonistic and defiant behaviors and
symptoms had decreased overall. Tabatabi
reported that Daniel had formed a stable and consistent bond with his current
caregiver. Tabatabi cautioned that
Daniel’s behaviors may increase as placement progresses and he transitions from
his current, secured attachment.
Tabatabi wanted to be included in planning a time to meet with Dario and
Daniel, and their social worker, to discuss placement, and stated he would
continue to assess and monitor any ongoing and new suicidal ideations Dario
might have.
In a report
filed on June 7, the CASA reported that Julissa and Andrew remained placed in
the prospective adoptive home, while Angelica was with the great-aunt, and
Dario and Daniel remained in their foster home.
Dario, Angelica and Daniel were visiting the prospective adoptive
parents on the weekends. The CASA
completed an assessment at the prospective adoptive home where Julissa and
Andrew were placed.
Dario’s prospective adoptive father
told the CASA that when Dario was in their home on weekends, he tended to be
aggressive with his siblings and often provoked them, particularly Daniel. The prospective adoptive father believed
Dario had a lot of anger; Dario said he missed his family and became very upset
and acted out when mother told him he would not be seeing her. Dario did open up to the prospective adoptive
parents a few weeks before and told them he wanted to go home; he ended up
having a good weekend with his siblings.
The prospective adoptive mother reported that Daniel was a humble child,
followed directions well, and while he had trouble eating certain foods, he was
trying new things. Angelica was reported
to be an overall good child; she was timid, liked to draw, and would shut down
when upset. Angelica had normal
relationships with her siblings.
Julissa’s behavior had greatly improved since she moved in with the
prospective adoptive parents; she had not engaged in any behaviors previously
reported, such as throwing tantrums, having outbursts, and having inappropriate
interactions with males. Julissa scored
well in the developmental and social/emotional ASQ. The prospective adoptive parents were told
that Andrew’s heart murmur was closing up.
While Andrew had a temper and could be stubborn, he was generally a
sweet and funny child. He had become
used to timeouts and did not scratch himself.
Andrew interacted appropriately with his siblings.
The CASA
further reported that while scheduling the assessment, the prospective adoptive
mother stated they might not be able to adopt the children after all, as her
husband was going through a career change.
They were in the process of informing the social worker about this. Their “major concern†was in regards to
Dario, who had been aggressive and upset due to not being able to go back
home. The four oldest children were
demonstrating better behavior in the home.
The CASA further reported that Angelica was excelling in school, reading
above grade level and had no discipline record.
Dario was reading at grade level and progressing in all of his
subjects.
In an
addendum report filed on June 8, the Agency changed its recommendation from
adoption to a permanent planned living arrangement (PPLA) with the goal of
reunifying the siblings. The Agency
reported that on June 5, the prospective adoptive parents informed the social
worker they would not be able to continue with the adoption due to personal
issues, namely that they were moving back east, and they were devastated about
the current situation. The children’s
therapists were informed of this information that same day.
On June 7, Julissa and Andrew were
returned to their great-aunt’s care, where Angelica remained placed. Dario’s foster mother called the social
worker that day and said that, while cleaning Dario’s room, she found “various
pornographic material.†She was highly
concerned. The social worker relayed
this information to Dario’s therapist, who told the social worker Dario was
having emotional difficulties. The
therapist related that on one occasion, when a visit with the prospective
adoptive parents was cancelled, Dario was very distraught and made comments
during therapy that he wanted to jump out of the car. A crisis team evaluated him and he appeared
to be fine. The social worker was highly
concerned about the children’s emotional wellbeing and therefore recommended
the children receive psychiatric evaluations before the Agency recommended a
permanent plan. The social worker was
working on scheduling a team decision meeting to discuss placement. A new adoption assessment was completed which
concluded that termination of parental rights would be detrimental to the
children because the current caretakers were unable or unwilling to adopt, and
adoption would substantially interfere with the sibling relationship.
In an
addendum report filed on July 3, the Agency changed its recommendation from
PPLA to adoption with termination of parental rights, as the Agency had identified
new prospective adoptive parents for the children. The couple was highly interested in, and able
to provide, a permanent plan of adoption.
The social worker stated that the first prospective adoptive couple was
located in April, but that placement failed; the social worker noted that the
children, especially Julissa and Dario, “have exhibited increase[d] behaviors
of defiance. Their behaviors are placing
their current placement at risk of removal.â€
As of the writing of the report on June 29, physical contact between the
children and prospective adoptive parents had not occurred, with the initial
contact scheduled for July 3. The
children and prospective adoptive parents had viewed photographs of each other
and been provided with each other’s personal information.
The social worker explained in the
addendum report the sequence of events after the first prospective adoptive
couple backed out of the adoption. On
June 12, the Agency received a letter from Angelica and Julissa’s therapist,
Forsyth. Forsyth stated she was “unable
to attend today†due to a previously scheduled training, but she wanted to
share her concerns about the girls.
Forsyth requested they not be moved from their current placement due to
their mental health diagnoses, previous treatment progress and recently failed
adoptive placement, which had been especially difficult on Angelica, who did
not want to leave her current placement, as well as on Julissa. In Forsyth’s opinion, being in a stable and
nurturing environment where attachment to a healthy adult could occur was more
important than adoption or maintaining sibling relationships. Forsyth noted that the great-aunt had worked
very hard to understand and incorporate RAD parenting interventions, and the
girls were making slow and steady progress.
Forsyth recommended that the Agency focus on the girls’ individual needs
when determining placement.
On June 14,
a team decision meeting (TDM) was held regarding placement of the
children. Mother, the current
caretakers, the children’s attorneys, and the “children’s therapist†were all
invited. Dario and Daniel’s foster
mother said she was willing and able to adopt Daniel, but not Dario, and she
did not know how long she would be able to care for Dario due to his acting
out. The great-aunt stated she would not
be able to adopt Angelica, Julissa and Andrew, but said she would consider
guardianship of the three. The social
worker had informed both of the attending therapists of the children’s
behaviors; therapeutic behavior services (TBS) were going to be implemented in
the upcoming weeks.
On June 20,
the Agency received a call from a couple who was highly interested and
motivated in adopting the five children together. They had gone through an assessment, their
home study had been completed, and they were licensed to take five
children. The children’s current
behaviors and needs had been disclosed to the couple. The prospective adoptive parents were “fully
aware of the needs of the children†and were willing and able to adopt the
sibling set.
On June 26,
the social worker advised the children’s attorneys of the current
situation. The attorney for Dario and
Daniel did not respond. The attorney for
Angelica, Julissa and Andrew electronically advised the social worker on June 27
that she agreed with the children being together in the new prospective
adoptive home. The great-aunt called the
social worker on June 26 and expressed her concerns and frustrations. The day after the TDM, the maternal
grandmother called the great-aunt and told her it was her fault the children
had not been returned to mother, that mother’s parental rights would not be
terminated and mother could make decisions about the children. The maternal grandmother also said that once
court was completed, she and mother would be able to visit and take the
children at any time. The great-aunt was
tired and frustrated with dealing with the family’s behaviors, and was
concerned that if she provided a permanent plan for the children, mother and
grandmother would intervene constantly with the way she was raising the
children.
The Agency
deemed the children to be adoptable. The
social worker reiterated the prospective adoptive parents were clear in their
desire to adopt all five of the siblings together. The prospective adoptive parents, a retired
couple in their mid-50’s, had been married for 33 years and were parents to
three adult children who do not live with them.
They had always wanted a large family and felt this was the perfect time
to expand their family through adoption.
They were interested in adopting a sibling group because they felt
strongly about not splitting children up from their siblings, and were looking
forward to providing the support and experiences each child needed. An adoption assessment was completed which
stated the children were adoptable.
In an
addendum report filed on July 17, the social worker stated that the children
were expected to be placed with the prospective adoptive parents within the
next couple of weeks. The children and
prospective adoptive parents had been together on three separate
occasions. The interaction between the
children and prospective adoptive parents appeared appropriate and the parents
were attentive to the children’s needs.
On the first contact, which took place in an observation room, the
parents brought various activities and crafts for the children. On the second contact, they all played at a
local park and the parents brought a family picnic; the children appeared to
enjoy the time together. The children
and parents had also enjoyed swimming together; during swimming, Andrew,
Julissa and Daniel sought the parents for support and reassurance while in the
pool. The children appeared calm during
visits, and asked their current caretakers, as well as the social worker, when
they would see the prospective adoptive parents again.
On July 12, the social worker asked
the children if they wanted to spend the night at the prospective adoptive
parents’ home; the children stated yes.
On July 13, the children went for an extended visit; they were going to
return on July 17, but the visit was extended to later in the week after Dario
said he felt safe and wanted to stay a little longer. The social worker spoke with Dario by
telephone on July 16 to see if he wanted to attend the court hearing; Dario
declined, but told the social worker “to ask the court if we can stay here
forever,†referring to the prospective adoptive parents’ home. The prospective adoptive parents do not live
in Tulare County. When they came to
Visalia to visit the children, they also “become educated with the needs of the
children, by communicating with the service providers to the children.†The prospective adoptive parents were “fully
aware†of the children’s needs and were clear in their desire to adopt the
children.
The prospective adoptive parents
attended REACH Tulare County, which provides pre- and post-adoption services to
families adopting through Tulare County foster care. The REACH program supervisor reported she had
observed a pre-adoptive visit between the parents and children. She also met with the parents on July 12 for
two and a half hours, when she provided education on the psychological effects
of adoption on children. She assessed
the parents to have superior parenting skills, including the flexibility to
meet the children’s individual needs, an open communication style, and
experience with large families and positive disciplinary measures. The parents also had an established support
system prepared to nurture the family.
While the parents did not have experience parenting children with
histories of maltreatment, they appeared to be a warm and loving couple with
solid parenting skills and a willingness to provide permanency. They were also invested in ongoing training and
ready to access the adoption resources and support they would need to meet the
needs of a large adopted sibling set.
The contested section 366.26
hearing was held on July 18. The Agency
submitted on its reports and the juvenile court took judicial notice of the
entire case file. The other parties also
submitted on the reports. Mother’s
attorney argued that mother wanted to see the children remain in their current
placements and the Agency pursue the placement of all the children with
relatives, rather than with an unknown placement. The attorney for Angelica, Julissa and Andrew
asserted that the sibling exception did not apply, as the children were to be
placed with the prospective adoptive family within the next two weeks. County counsel confirmed that was the plan,
as the children already had extended overnight visits, as well as a week-long
visit, visits were going very well, and Dario had indicated he did not want to
leave the prospective adoptive home. County
counsel further explained that when the prospective adoptive parents had been
in the area, they had taken time to learn about each child and his or her
issues, and also had been set up with services, which are available to assist
them if there were problems. The
attorney for Dario and Daniel joined in the remarks of the other children’s
attorney and County counsel. The
juvenile court took the matter under submission and set July 20 as the hearing
date for the ruling.
On July 20, the juvenile court
adopted the social worker’s findings and orders. The juvenile court found there was clear and
convincing evidence that the children were likely to be adopted, ordered
termination of parental rights, and referred them to the county adoption agency
for adoptive placement.
DISCUSSION
Mother’s appeal challenges the termination of her parental rights on
the ground the juvenile court’s finding of adoptability is not supported by
sufficient evidence.
name="_ftnref6" title="">[5] Both
the evidentiary standard that applies to this issue in the juvenile court and
our standard of review on appeal are well settled. At a section 366.26 hearing, the court must
determine by clear and convincing evidence whether it is likely the minor will
be adopted. (§ 366.26, subd.
(c)(1).) If the court finds a likelihood
of adoption, the court must terminate parental rights, in the absence of
statutory exceptions that mother does not argue are applicable here. (In re Celine R. (2003) 31 Cal.4th 45,
53 [if evidence at section 366.26 hearing shows child is likely to be adopted,
juvenile court “must order adoption and its necessary consequence, termination
of parental rights, unless one of the [statutorily] specified circumstances
provides a compelling reason for finding that termination of parental rights
would be detrimental to the child.â€]; In
re A.A. (2008) 167 Cal.App.4th 1292, 1320 (A.A.).)
“Although a finding of adoptability must be supported by clear and
convincing evidence, it is nevertheless a low threshold: The court must merely determine that it is
‘likely’ that the child will be adopted within a reasonable time. [Citations.]
We review that finding only to determine whether there is evidence,
contested or uncontested, from which a reasonable court could reach that
conclusion. It is irrelevant that there
may be evidence which would support a contrary conclusion.†(In re K.B. (2009) 173 Cal.App.4th
1275, 1292.) In other words, on appeal,
“the clear and convincing test disappears and ‘the usual rule of conflicting
evidence is applied, giving full effect to the respondent’s evidence, however
slight, and disregarding the appellant’s evidence, however strong.’†(In re I.W. (2009) 180 Cal.App.4th
1517, 1526.) Moreover, we review the
record in the light most favorable to the juvenile court’s findings, and draw
all inferences from the evidence that support the court’s determination. (In re Nada R. (2001) 89 Cal.App.4th
1166, 1177.)
“The adoptability issue at a section 366.26 hearing focuses on the
dependent child, e.g., whether his or her age, physical condition, and
emotional state make it difficult to find a person willing to adopt.†(A.A., supra, 167 Cal.App.4th at p.
1311.) “It is not necessary that the
child already be in a potential adoptive home or that there be a proposed
adoptive parent ‘waiting in the wings.’
[Citation.] [¶] Conversely, the existence of a prospective
adoptive parent, who has expressed interest in adopting a dependent child,
constitutes evidence that the child’s age, physical condition, mental state,
and other relevant factors are not likely to dissuade individuals from adopting
the child. In other words, a prospective
adoptive parent’s willingness to adopt generally indicates the child is likely
to be adopted within a reasonable time either by the prospective adoptive
parent or by some other family.†(A.A.,
supra, 167 Cal.App.4th at pp. 1311–1312.)
Having reviewed the record as summarized above, we conclude there was
substantial evidence to support the juvenile court’s adoptability finding. The children were physically healthy, with no
developmental delays, and they are attractive.
None of the children received services from CVRC. They were doing well in school. The children shared close relationships with
each other. While Dario could be
aggressive with his siblings, he was able to engage in appropriate behavior
with them and the other children interacted appropriately with each other.
Although Angelica and Julissa had been diagnosed with an attachment
disorder, and Dario and Daniel had been diagnosed with adjustment disorders,
they all were receiving therapy. In
spite of the girls’ disorder, they had made significant psychological progress
in their placement with the great-aunt, as well as important strides in their
attachment potential. We recognize that
their therapist was concerned about the effect another change of placement
would have on their mental health; however, the therapist did not opine on what
difficulties another family might have with the girls should a second adoptive
placement be attempted. Notably, when
Julissa was placed with the first adoptive family, she did not engage in any of
the behaviors previously reported, such as throwing tantrums or having
outbursts. Moreover, the first adoptive
family did not have any concerns about the other children’s behaviors, with the
exception of Dario, who was having difficulty accepting the loss of his
relationship with mother. But even
Dario’s behavior improved during visits with them.
Finally, two sets of caregivers had been interested in adopting the
children. Although the first prospective
adoptive parents had to back out of the adoption for personal reasons, namely a
move to the east due to a career change, until that occurred they remained
committed to adopting the children despite their behavioral problems. While the children had not yet been placed
with the second prospective adoptive parents, the parents were apprised of the
children’s issues, had educated themselves on the services the children
required and were fully aware of the children’s needs. The children had participated in an extended
visit with them and there were no reported problems. Significantly, the children were all excited
to visit them and Dario wanted to be placed with them.
Given the children’s positive attributes, the progress they were making
in overcoming their behavioral and emotional problems, as well as the current
and former caregivers’ willingness to adopt them, the juvenile court properly
could find it was likely the children would be adopted. (§ 366.26, subd. (c)(1).)
Mother claims that where a child
has characteristics that make him or her less “adoptable,†such as being
seven-years-old or older, being part of a sibling group, having physical or
mental deficits, or having serious emotional/behavioral problems, there
“generally†must be evidence of persons who, after becoming aware of those
characteristics, intend to, or are interested in, adopting the child. Citing the cases which found children
adoptable despite severe behavior problems, namely In re I.I. (2008) 168 Cal.App.4th 857, A.A., supra, 167
Cal.App.4th 1292, and In re Brandon T.
(2008) 164 Cal.App.4th 1400, she asserts that when dealing with children who
have a “high level of ‘difficult to adopt’ characteristics,†the evidence must
establish more than that families are interested in adopting the children or
that a family intends to adopt them after being advised of their
characteristics. In such situations, she
asserts there must be evidence that the prospective adoptive parents actually
cared for the children in their home, so the juvenile court may be assured the
children’s characteristics will not cause them to back out.
Applying this “rule†to this case,
mother argues that the children had most of the characteristics that make a
child difficult to place for adoption, as two of the children are seven-years-old
or older, and one is nearly seven; the children are a large sibling group of
five who are closely bonded; and the
children have “major psychological/emotional issues†that threaten their
ability to form healthy parent-child bonds and become more behaviorally
adjusted. Mother reasons that since the
children are highly difficult to place for adoption, that two families were
willing to adopt them is insufficient evidence to support the adoptability
finding. She argues the failed adoptive
placement demonstrates that the children are difficult to adopt, and actually
exacerbated the children’s attachment issues and needs, which led the Agency to
recommend a PPLA and that the children receive psychiatric evaluations before
changing placements. She further argues
there was no guarantee the prospective adoptive parents would follow through
with the adoption, as they had only recently been identified, did not have
substantial experience caring for the children, it was unclear how much they
had been told about the children’s difficulties, and they had not yet developed
a bond with the children. She contends
the Agency’s change of recommendation from PPLA to adoption was irrational, as
the only thing that had changed between the two recommendations was the appearance
of the new prospective adoptive couple who, as of June 29, the date of the
Agency’s report, had not yet seen the children.
Notably, mother raised none of these concerns in the juvenile court
where her points and their legal significance, if any, could have been
litigated. By arguing them now, mother
essentially asks this court to reweigh the evidence and draw questionable
inferences on conflicting evidence.
This, however, is not within our appellate purview. Our power, when asked to assess the sufficiency
of the evidence, whether or not contradicted, which will support the trier of
fact’s conclusion. All conflicts must be
resolved in respondent’s favor and all legitimate inferences indulged in to
uphold the decision, if possible. (
1373, 1378-1379.) On this record, we
conclude there was substantial evidence to support the juvenile court’s
finding.
Moreover, mother’s argument centers
on the children’s behaviors, which she believes are so egregious that they likely
would cause the second prospective adoptive family to back out of the
adoption. The children’s behaviors,
however, are not as bad as she portrays.
As discussed above, while Angelica and Julissa had been diagnosed with
attachment disorders, they did not demonstrate any significant behavioral
problems with the first prospective adoptive couple, and there was no evidence
of behavioral problems with the second prospective adoptive couple. The girls’ therapist was concerned about the
effect a change in placement would have on them and commended the great-aunt
for applying RAD parenting techniques, but did not opine on what behavioral
difficulties the girls might experience if another adoptive placement were
attempted. While mother emphasizes the
therapist’s recommendation to leave the girls with the great-aunt, she ignores
that the great-aunt was reconsidering providing a permanent plan for them,
since mother and her family were threatening to interfere. There were absolutely no problems reported
with Daniel’s behavior. And while Dario
was having the most problems adjusting to the idea of being adopted, and his
foster parents were unwilling to adopt him because of problems he was
displaying in their home, his behavior apparently improved when visits with the
second prospective adoptive couple began.
Viewing the evidence in the light most favorable to the juvenile court’s
decision, the juvenile court reasonably could find that the children’s
behaviors were not so severe as to require the court to question whether the
second couple would back out of the adoption.
Mother asserts the first adoptive
family backed out in part because of the children’s behaviors. Reading the record in a light most favorable
to the juvenile court’s findings, as we must, we conclude there is no evidence
the children’s behaviors influenced their decision to back out. Mother cites to a section 366.26 report, in
which the social worker stated the prospective adoptive parents intended to adopt
the children, and to the May reports from Dario’s and Daniel’s therapist. She then points to the CASA report, which
states that the foster mother told the CASA “they might not be able to provide
permanency after all, the foster mother stated her husband will be going
through a career change. The foster
parents reported they were in the process of informing the county social worker
about the latest information. On
05-30-2012, CASA contacted the social worker but she was out, so this
information was given to the supervisor Kathleen Trevino. The foster parents[’] major concern is in
regards to Dario who has demonstrated to be aggressive and upset due to not
being able to go back home. The four
oldest children receive counseling, and are demonstrating better behavior at
the home.†She also cites to the social
worker’s addendum report, which states that the social worker “was informed
that the prospective adoptive parents to the children would not be able to
continue with the adoption process, for personal issues aro[]se in which they
will be moving back east. The
prospective adoptive parents stated that they are devastated on the current
situation, however would not be able to adopt the children.â€
In our view, this evidence shows
that the first family backed out because they were moving back east, not
because of the children’s behaviors. In
fact, they reported that the children’s behaviors were improving and Julissa
did not act out as reported to them.
While they were concerned about Dario, that they expressed this concern
does not mean that they backed out because of his behavior. In fact, they reported an ability to discuss
Dario’s problems with him, and after that discussion, he had an enjoyable
weekend with his siblings. That the
children were labeled “difficult to place†does not mean that the first couple
was not nevertheless committed to adopting them.
Mother would like us to adopt a
rule that requires the children, who have been found to be difficult to place,
to have been living with the second prospective adoptive couple for an extended
period of time before an adoptability finding may be made. We decline to do so. None of the cases she cites require such a
finding. Moreover, as we explained in
562, not all dependency cases fall neatly into one of two scenarios: One, in which the availability of a
prospective adoptive parent is not a factor whatsoever in a social worker’s
assessment that a child is like to be adopted (generally adoptable); or two, where
a child is likely to be adopted based solely on the existence of a prospective
adoptive parent (specifically adoptable). “These scenarios represent opposite ends on
the continuum of when a child is likely to be adopted. However, many adoption assessments that
recommend an adoptability finding fall somewhere in the middle. They consist of a combination of factors
warranting an adoptability finding, including, as in this case, the
availability of a prospective adoptive parent.
This is the reality we confront, notwithstanding appellate arguments
that assume a child is either generally adoptable without regard to a
prospective adoptive parent or specifically adoptable based solely on the
availability of a prospective adoptive parent.â€
(Id. at p. 562.)
Here, as we have already explained,
there was a combination of factors which supported the juvenile court’s
adoptability finding. For all the
reasons stated above, we conclude the juvenile court properly could find it
likely the children would be adopted.
DISPOSITION
The order terminating parental
rights is affirmed.
Gomes, J.
and Institutions Code.
