In re D.H.
Filed 1/31/14 In re D.H. CA3
NOT TO BE
PUBLISHED
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Sacramento)
----
In re
D.H., JR., a Person Coming Under the Juvenile Court Law.
C074367
(Super. Ct. No. JD232306)
SACRAMENTO
COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Plaintiff and
Respondent,
v.
D.H.,
SR.,
Defendant and
Appellant.
D.H.,
Sr. (father), appeals from the juvenile
court’s order terminating parental
rights. (Welf. & Inst. Code, § 366.26.)[1] He contends insufficient
evidence supports the predicate finding that the minor, D.H., Jr. (the minor),
is adoptable. We shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2012, the Sacramento County Department of Health and Human
Services (Department) filed a section 300 petition as to the minor (born in
October 2010). The petition alleged that
father was incarcerated in Deuel Vocational
Institution and mother (N.T.) was a homeless methamphetamine addict who had
dropped off the minor with the minor’s godfather, then failed to remain in contact
with him or provide for the minor. The
detention report further alleged that mother’s whereabouts were unknown and
father would remain incarcerated until 2014.
At
the contested jurisdictional/dispositional
hearing in August 2012, the juvenile court sustained the section 300
petition, ordered the minor placed in foster care, and ordered reunification
services for mother but not for father.
The
January 2013 six-month status review report proposed terminating mother’s
services because she had not engaged in services or visitation and her
whereabouts remained unknown. The minor
had developmental delays, including significant speech delays, for which he was
receiving assistance; he was also receiving therapy because he struggled to
express his feelings and needs and was displaying sleep disruption, severe
tantrums, and gorging. A recent
placement change had caused him to regress and he was still having difficulty
adjusting to the new placement, but was improving slightly week by week. Despite the minor’s problems, the Department
considered him adoptable and recommended adoption as the permanent plan.
In
January 2013, the juvenile court terminated mother’s services and set a section
366.26 hearing for May 2013. The court
directed the Department to assess whether adoption or some other permanent plan
would be most appropriate.
The
section 366.26 report, filed in April 2013, called the minor “generally
adoptable” despite “some behavioral problems and a speech delay.” He had “no diagnosed mental handicap” and was
“making significant improvements in his behaviors.” He was “doing exceptionally well in the care
of his adoption homestudy approved family,” with whom he had been placed since
December 2012. They saw to it that all
of his needs were met. He was happy and
“ha[d] made a very good adjustment to his caretakers and environment.” The likelihood of his adoption was “excellent.”
When
assessed in June and July 2012, the minor was found to be “at age level for
cognition, delayed approximately 6 to 8 months for speech, and slightly above
age level for fine and gross motor development and for self[-]help
skills.” Since then, he had made “good
developmental progress”; his “language skills ha[d] increased tremendously and
he ha[d] a vocabulary of approximately 80 words” (as compared to the
“developmental milestone for an average two year old” of about 300 words). His physical development was on track. He still had disturbed sleep, but could fall
back to sleep after being reassured by his caretakers.
The
minor continued to receive weekly in-home Parent Child Interactive Therapy
services to improve his frustration tolerance and the parent-child
relationship. He had responded well,
with a decrease in tantrums, food hoarding, and gorging. However, frequent changes of therapists had caused him to
regress in the past.
Previous
foster parents had described the minor as “sad,” with possible “attachment
issues.” Now, however, he smiled often
and enjoyed new experiences. He was
caring and helpful, got along well with other children, and had started in a
soccer league for children in his age group.
At
the contested section 366.26 hearing in June 2013, the juvenile court
stated: “It appears that this very young
child is generally adoptable with no exceptions that would make him in any way
difficult to be adopted by anyone.”
Father’s counsel argued that the minor was not likely to be adopted,
citing the minor’s diagnoses of “abnormal health and development, speech
delays, [and] language delays,” his need for “early intervention services,” his
“problems with food and hoarding behaviors,” his “tantrums,” and his possible
continuing “attachment issues.” Counsel
objected to a finding of adoptability, to the choice of adoption as a permanent
plan, and to the termination of father’s parental rights. The juvenile court responded:
“It’s
very interesting when one hears the arguments regarding children’s likelihood
of adoption. And, generally, we are
guided by looking at characteristics that perhaps maybe are realistic for most
people [who] would not want to adopt this child. I’m not really sure that that’s what the
standard is under the law, and I don’t know whether that’s really been found.
“There
is a home that has been willing to accept [the minor] into the home, to work
with him, to love him, to guide him, to be everything a parent needs to be with
a child. And they have not found that
whatever characteristics he has makes him unadoptable to them. And that is evidence to the Court that at
least one family who did not know [the minor] before finds him adoptable. If one family finds him adoptable, even with
all of the problems that he had, and now that he has found a home with them and
their work with him, his tantruming is less.
He is easily deterred and calmed down.
They take him to public places where he acts well-behaved. Even if his diagnosed developmental delays,
developmental and social and emotional development problems have increased, it
could be, and the Court would only be speculating, that it could easily be that
what would be seen and diagnosed by the experts was really the result, not
necessarily of his own delays or emotional problems, but the result of not
being able to receive what he’s been receiving in this home.”
The
juvenile court found that the minor was likely to be adopted, termination of
parental rights would not be detrimental to him, and freeing him for adoption
was in his best interest. The court
ordered the termination of mother’s and father’s parental rights and chose
adoption as the permanent plan.
DISCUSSION
Defendant contends insufficient evidence supports the finding of
adoptability made by the juvenile court.
We disagree.
“If
the court determines, based on the assessment . . . and any other
relevant evidence, by a clear and convincing standard, that it is likely the
child will be adopted, the court shall terminate parental rights and order the
child placed for adoption.” (§ 366.26,
subd. (c)(1).)
We
review the finding that the child is likely to be adopted within a reasonable
time under the substantial evidence standard, giving it the benefit of every
reasonable inference and resolving any evidentiary conflicts in favor of
affirming. (In re I.I. (2008) 168 Cal.App.4th 857, 869.) That is, we must determine whether the record
contains substantial evidence from which the court could find clear and
convincing evidence that the child was likely to be adopted within a reasonable
time. (In re B.D. (2008) 159 Cal.App.4th 1218, 1232.)
The
determination of whether a child is likely to be adopted focuses first upon the
characteristics of the child; therefore, a finding of adoptability does not
require that the child already be in a prospective adoptive home. (In re
Sarah M. (1994) 22 Cal.App.4th 1642, 1649 (Sarah M.).) However, the
fact that a prospective adoptive family has expressed interest in adopting the
child is evidence that the child is likely to be adopted by that family or some
other family in a reasonable time. (
1145, 1154; Sarah M.,
to find that a child is “generally adoptable” before terminating parental
rights. (In re A.A. (2008) 167 Cal.App.4th 1292, 1313.)
Here,
the Department called the minor “generally adoptable” and pointed to no
characteristics which, in the Department’s opinion, would make the minor
difficult to place with prospective adoptive parents. The minor’s placement with foster parents who
have indicated they wish to adopt him is strong evidence that he is likely to
be adopted within a reasonable time. (
at pp. 1649-1651.) Thus, the
minor’s delays and emotional problems, all of which were significantly improved
or improving as of the section 366.26 hearing, did not militate against
adoptability.
Father
reiterates the litany of the minor’s problems, which father’s trial counsel
recited below. But father cites no
authority holding that any of these problems would necessarily constitute an
obstacle to adoption, and we know of none.
Father
relies on In re Jerome D. (2000) 84 Cal.App.4th
1200, 1205 and In re Amelia S. (1991)
229 Cal.App.3d 1060, 1065-1066 (Amelia
S.), which he represents as holding:
“The fact that persons have expressed an interest in adopting a special
needs child is not by itself sufficient to show clear and convincing evidence
that the child is adoptable.” But
neither decision actually so holds, and both are distinguishable on their
facts.
In
Jerome D., which does not use the
expression “special needs child,” the juvenile court’s finding of adoptability
was based solely on the willingness of one foster parent to adopt, but a
homestudy had not been done on him despite his known criminal and Child
Protective Services history; nor had the adoption assessment considered the
minor’s close relationship with his mother, or the fact that he had a
prosthetic eye, which required care and treatment. (In re
Jerome D., supra, 84 Cal.App.4th
at p. 1205.) In the present case,
while the section 366.26 report recommended adoption, and the juvenile court
found the minor generally adoptable, the finding was not based solely on the
willingness of the current caretakers to adopt (though the court properly found
their willingness to adopt to be strong evidence of adoptability). A homestudy on those caretakers had been
done, and they had passed. The minor has
no relationship with either biological parent.
Finally, there is no evidence that his delays and emotional problems are
permanent and intractable, rather than temporary and remediable.
In
Amelia S., the minor was one of 10
children, ranging in age from a newborn to nine, who were all taken into
protective custody. (
the children. (Ibid.) The permanency
reports indicated that the sibling set to which the minor belonged would all be
placed together. (Id. at p. 1063.) The
report stated that “[r]ecruitment for prospective adoptive families ha[d] been
initiated and several possible families ha[d] already been identified,” but did
not state that any had expressed willingness to adopt. (Ibid.) A petition for modification filed by the
adoption assessment agency asserted:
“The minor is a special needs child in that the minor is part of a
sibling set of ten. The minor suffers
from social delays as well. Due to the
above circumstances, [the agency] considers the minor a hard to place
child.” (Ibid.) The reviewing court
found, under the circumstances, that the fact “a few foster parents were
. . . from the clear and convincing evidence required to establish
the likelihood of adoption.” (Id.
at p. 1065.) In the present case,
unlike Amelia S., there is no
evidence that anyone has ever identified the minor as a “special needs child”
or a “hard to place child.” Furthermore,
the fact that prospective adoptive parents are willing to adopt the minor
distinguishes this case from Amelia S.,
in which no such evidence existed.
Substantial
evidence supported the juvenile court’s finding of adoptability.
DISPOSITION
The
order terminating father’s parental rights is affirmed.
BUTZ ,
Acting P. J.
We concur:
MAURO , J.
HOCH , J.
[1] Undesignated statutory
references are to the Welfare and Institutions Code.
