In re J.E.

Filed 1/21/10 In re J.E. CA1/2

OT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

I.       INTRODUCTION

O.E., the mother of J.E. (Mother), appeals from the juvenile courts order terminating her parental rights under Welfare and Institutions Code section 366.26.[1] Mother argues that the order should be reversed because there was insufficient evidence of adoptability. We disagree and, accordingly, affirm.

II.    FACTUAL AND PROCEDURAL BACKGROUND

On September 18, 2007, the Contra Costa County Bureau of Children and Family Services (the Bureau) received a referral from the Richmond Police Department that four-year-old J.E. was being left outside on a regular basis in an unsafe neighborhood, was usually dirty and hungry, and would beg for food from neighbors. J.E. had numerous red linear marks on his face, a healing shallow cut near his eye, and deep, old burn marks on his left arm. The police officers who responded to the complaint reported that when they found J.E.s home and tried to return him to Mother, he screamed, cried and clung to the officer who was holding him. J.E. told the officers that Mother had cut his eye with a knife and that he was afraid of her. He refused to go to her. J.E. was detained via police hold and placed in foster care.

On September 20, 2007, an original petition was filed pursuant to section 300, subdivisions (a) and (b), alleging that J.E. had bruises, cuts and burns inflicted by Mother, that Mother had failed to properly supervise him, and that Mother and her boyfriend had engaged in domestic violence in J.E.s presence. At the detention hearing the next day, the court ordered J.E. detained.[2]

At the jurisdiction hearing on October 19, 2007, Mother submitted to amended allegations that she had physically abused J.E. (count a-1), engaged in domestic violence (count b-4), and neglected J.E. (count b-5).

In the disposition report, the social worker reported that Mother told her that J.E. had a habit of leaving the home by himself and that, on the day the police brought him home, she was busy doing housework and did not realize that J.E. was gone. Mother said J.E. cries whenever he has to come inside. She denied cutting J.E. with a knife and found it strange that J.E. would talk about a knife. She thought probably someone else threatened him or did something to him. Regarding the burn marks, Mother said she left a pan of fried chicken on the stove to cool and that J.E. tipped it and the hot oil fell on him. She called 911 and J.E. was first taken to Childrens Hospital Oakland (CHO), but was transferred to Shriners Hospital in Sacramento because he had suffered third degree burns. J.E. was hospitalized for three months. Mother said she took J.E. for his after-care for awhile but stopped because CHO would not accept Medi-Cal.

The social worker reported that Mothers three older children and J.E. were interviewed at the Childrens Interview Center. The three older children all said they preferred living with their grandmother because Mother does not take care of them, hits them, and would leave them in charge of the younger children while she went out dancing with her boyfriend.

The social worker also reported that J.E. was developing well physically, but that his speech was not always clear. The social worker referred J.E. for a speech evaluation to determine whether therapy was necessary. When J.E. was first placed in foster care, the foster mother said he had nightmares and would wake up crying and screaming. He talked a lot about knives and threatened to kill his foster brother. The foster mother said J.E. had improved greatly since he was first placed with her. He minds her and follows house rules; he had calmed down considerably and no longer threw tantrums. The foster mother also reported that on days J.E. visited with Mother, J.E. wet his bed that night. The social worker reported that Mother was visiting J.E. at the Bureaus office every other week and had not missed any visits.

At the disposition hearing on December 14, the juvenile court declared J.E. a dependent, ordered him removed from Mothers custody, and approved the provision of reunification services to Mother.

By the first review hearing in May 2008, J.E. remained placed in the same Spanish-speaking foster home, which had been identified as a concurrent home for him. According to the status review report, J.E. was still developing well and liked soccer and Batman. He had a tendency to overeat and seemed to not be able to process feeling full until his stomach hurt. J.E. was attending preschool. His teacher reported that he was a very loving child and frequently asked for hugs from staff. She said he is trying to fit in, and the goal for him was to work on conflict management in negotiating with his peers. She also said he is very verbal at expressing what he wants.

At a home visit, the foster mother said J.E. is no longer trying to leave the house or opening doors to go outside. He still gets very angry when he does not get what he wants or his own way. At those times, he would tell people he is going to kill them.

J.E. was attending weekly therapy. The therapist was working to help J.E. process his past trauma and manage behaviors associated with his response to placement in foster care, and to help J.E. with experiences related to contacts with Mother. The report documented a number of missed visits and extended periods of time with no contact. In an April 2008 progress report, the therapist stated that J.E.s symptoms appeared to be exacerbated by the inconsistency of communications by Mother and noted that J.E. was experiencing bed-wetting again.

The social worker described J.E. as a compassionate adoptable boy. She had begun speaking with the family about continued permanency for J.E.

In the status review report, the Bureau recommended six more months of services for Mother because of J.E.s age, but did so expressly with reservation because of neglect and abuse, and because Mother ha[d] not been engaged in her case plan in order to have increased visitation and continued to take minimal responsibility for the events that brought her to the attention of the Bureau.

In a memo to the court dated June 5, 2008, the Bureau updated the court on Mothers progress on her case plan and submitted amended recommendations that Mothers reunification services with J.E. be terminated. The social worker reported that J.E.s foster mother told her that although she loves J.E. very much, because of personal reasons, her family could not adopt him. An adoption worker was assigned to find a concurrent home for J.E. and three families were being considered.

At a contested review hearing on June 18, 2008, despite the recommendation by the Bureau that services for Mother be terminated, the court continued services until October.

In the status review report prepared for the October hearing, the social worker reported that J.E. had been placed in a new Spanish-speaking concurrent home on August 1, 2008, and was doing extremely well. The new family was reported to be a loving couple who were ready to adopt J.E. as soon as he was freed for adoption. J.E. was the only child in the home and benefitted greatly from a lot of one-on-one attention. He was reportedly extremely happy in his placement, and enjoyed playing with neighbor children. He told the social worker that he wanted to stay there.

J.E. was reported to be in good health with the exception of significant and unusual damage to his teeth.

J.E. was in kindergarten and was academically behind his peers. He could not write at all, could not count to ten, and did not know the alphabet. His foster mother was working with him daily on his numbers and letters and helped in his classroom two days a week. J.E. was responding well to the tutoring. The social worker requested an IEP.

J.E. was still attending weekly therapy. In a recent progress report, the therapist stated that J.E. had never volunteered any information about Mother or about any contact with her without being prompted. He stated that he had worked with the current caregivers to address J.E.s resistance to attending visits with Mother but behavioral interventions had not been successful in reducing J.E.s resistance. In response to the therapists questions about his feelings toward Mother, J.E. would insist that his foster mother was his mommy.

J.E. had supervised visits with Mother at his school for an hour once a week. J.E.s teacher reported that Mother came regularly except for missing a visit the last week in August. The teacher stated that J.E. acted the same whether Mother was there or not. She said J.E. did not connect with Mother when she was there and he wanted to focus on school activities rather than spend time with Mother or let her help him with his school work.

J.E. also had supervised visits twice a month with Mother and his half-sibling E.G. at the Bureaus office. Sometimes J.E. would refuse to go to the visits when the parent aide came to pick him up. The foster mother reported that when Mother calls J.E. on the phone, he will talk for about two minutes, giving only one-word answers, and then will ask the foster mother if he can get off the phone. On one occasion, he refused to speak with Mother at all. After every call, J.E. asks to be held and rocked like a baby. During a home visit, the social worker asked J.E. if he wanted to spend time with E.G., and J.E. said no. When the worker asked if he wanted to spend time with Mother, J.E. answered, no, I want to be here.

The social worker also reported that Mother had only recently, in the past three to four months, been engaged in her case plan. The Bureau opined that although Mother had recently begun to take some responsibility for working on her case plan after 12 months of services, she still had much more to do to ensure that J.E. would be safe in her care. Based on Mothers minimal efforts to comply with her case plan, and J.E.s refusal to have any relationship with her, the Bureau recommended terminating reunification services and setting a section 366.26 hearing.

The foster parents submitted to the court a Caregiver Information Form dated September 25, 2008. In the report, they described their care of J.E. and the current status of his physical and emotional health, education, social skills, interests and activities, and other pertinent information. They described him as a sweet child and stated that they felt very blessed to be able to care for him.

After the matter was set for a contested review, the Bureau submitted a memo dated November 19, 2008, to update the court about Mothers progress on her case plan and visitation with J.E. J.E. had been refusing to visit or speak on the phone with Mother. The social worker suggested that the foster parents bring J.E. to visits. The therapist agreed and indicated that the visit should be ended if J.E. cried or did not want to visit; he advised the social worker to tell J.E. that the visit would be short and that J.E. could end the visit if he wanted to. A visit in September occurred without incident, but the foster mother reported that J.E. wet the bed twice over the weekend after the visit and that he refused to speak with Mother over the phone. J.E. refused to go with the foster mother to a visit in October.

In November, the social worker arrived to take J.E. to a visit. J.E. ran to the foster mother and sat on her lap, grabbing her around the neck and pretending to cry like a baby. He asked for reassurance several times that after the visit the foster mother would wait for him until he returned. He then went quietly with the social worker and did not speak during the drive to Richmond. He had fun playing with E.G. but, after his brother left, J.E. crawled into a box and stayed there, speaking to Mother from inside the box. The next day, the foster mother reported that J.E. seemed fine when he returned home, but that around 7:00 p.m., he got on her lap and said he was going to cry. He cried for awhile and she held him. He could not explain why he was crying. He wet the bed that night for the first time since his last visit with Mother. The next day he told the foster mother that he was going to live with her forever and ever. She told him she would be very happy if he lived with her forever and ever.

On November 26, 2008, the court held a contested review hearing. In addition to the status review report prepared by the social worker, the court considered a progress report submitted by J.E.s therapist. The therapist reported that J.E.s mental health is being negatively impacted by contact with [Mother]. The Bureau requested that the court find that further visits would be detrimental and order no further contact unless and until receipt of a different recommendation from the therapist. Following the hearing, the court terminated Mothers services, found that contact or visits between J.E. and Mother was detrimental to J.E., and ordered that there be no contact. The court also set a date for the section 366.26 hearing.

In the meantime, Mothers counsel requested a continuance so that he could file a section 388 petition. In the petition, Mother alleged that she was in compliance with her case plan and requested either that J.E. be returned to her custody or that a plan other than adoption be selected. After hearing testimony from appellant and the arguments of counsel, the court denied the petition.

The Bureau submitted a report for the section 366.26 hearing. The Bureau reported that J.E. was healthy, his development was on target, and that although he had difficulty pronouncing certain letters, he did not qualify for speech therapy. Academically, J.E. was now performing at an appropriate grade level and it was noted that he had an excellent memory and advanced reasoning skills.

The report also stated that J.E. had adjusted well to his current placement and had stated that he wanted to remain with his current caregivers. He was showing less anxiety and regressive behavior, and was continuing weekly therapy. In addition, he got along well with peers and adults at school, although he tended to be very competitive with other children.

The Bureau assessed J.E.s likelihood of adoption as follows: [J.E.] is a six year old boy whose verbalizations, behavior, and play suggest that he has suffered significant abuse and neglect. He has responded to the structure and nurturance of his concurrent caregivers and is developing a trusting relationship with them. He is able to verbalize that he wants to remain in this home and shows no interest in continued contact with his mother nor has he asked to visit with his half-siblings. [] [J.E.] is an adoptable child and has been in the care of his potential adoptive family for seven months. The family is committed to providing [J.E.] with permanence through adoption and is helping him heal from his painful past. The concurrent family has an approved adoptive home study on file with the Bureau and is anxious to adopt [J.E.] should parental rights be terminated.

The report also included the Bureaus evaluation of J.E.s case: [J.E.] is a child whose emotional and physical needs were not met during his first four years. Additionally, he experienced his younger half-brother receiving preferential treatment on a daily basis. Given his history, it is not surprising that [J.E.] is quite clear in verbalizing his desire to live with his current caregivers so they can become his forever family. [] [J.E.] has progressed in his behavior, from being aggressive with other children to getting along with them, from being disrespectful with adults, to becoming respectful and polite. His bedwetting has stopped and his bouts of crying are rare. [J.E.]s needs are being well met by his concurrent family. He is also now secure enough to be able to focus on school and he is making good progress academically. [] . . . [J.E.] is an adoptable child and has a potential adoptive family willing to provide him with the love, diligent care, stability, and the permanence of adoption.

During the hearing on April 23, 2009, the social worker testified that J.E. was thriving in his placement with the concurrent family. He was doing well at school and his foster parents understood and were very sensitive to his emotional and developmental needs. The Bureau believed that J.E.s foster parents were committed to adopting him and that they could provide properly for his needs.

After testimony and argument by counsel, the court found, by clear and convincing evidence, that J.E. was adoptable. Accordingly, the court terminated Mothers parental rights and selected adoption as J.E.s permanent plan.[3]

Mother filed a timely notice of appeal on May 7, 2009.

III. DISCUSSION

Mother contends the evidence was insufficient to support a finding that J.E. was likely to be adopted. In order for the juvenile court to terminate parental rights under section 366.26, the court must find by clear and convincing evidence that it is likely that the child will be adopted. ( 366.26, subd. (c)(1).) Clear and convincing evidence requires a finding of high probability. The evidence must be so clear as to leave no substantial doubt. (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205.) (In re Asia L. (2003) 107 Cal.App.4th 498, 510 (Asia L.).)

The determination of whether a child is likely to be adopted focuses on the characteristics of the child, e.g., the childs age, physical condition and emotional state, and whether any of those characteristics make it difficult to find a person willing to adopt the child. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) The fact that a prospective adoptive family is willing to adopt the child is evidence that the child is likely to be adopted by that family or some other family in a reasonable time. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154; In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.) It is not necessary that the child already be placed in a pre-adoptive home or that a proposed adoptive parent be waiting. ( 366.26, subd. (c)(1); In re Sarah M., supra, 22 Cal.App.4th at p. 1649.) However, there must be clear and convincing evidence that adoption is likely to take place within a reasonable time. (In re Amelia S. (1991) 229 Cal.App.3d 1060, 1065 (Amelia S.).)

Adoption is the permanent plan preferred by the Legislature when the child cannot be returned to his or her parents care. ( 366.26, subd. (b)(1).) Here, J.E. was taken into protective custody in September 2007 at the age of four; by the time of the section 366.26 hearing, he had been in foster care for 20 months. As recited in detail above, at the time of the section 366.26 hearing, J.E. was physically healthy, developmentally on-target, got along well with other children and adults, and was thriving in his concurrent placement. Although there was evidence that J.E. had emotional problems and would need diligent care, such as a lot of attention and supervision, patience with his many fears, and weekly therapy, his foster parents were adept at meeting his needs, were devoted to him, and were committed to adopting him. They had completed their training classes and had an approved adoptive home study on file. This was clear and convincing evidence both that the proposed adoptive family was likely to adopt J.E. and, alternatively, even if the proposed adoptive family did not adopt him, that some family was likely to adopt him in a reasonable time.

Mother argues that J.E. is not adoptable, despite his placement with foster parents who are anxious to adopt him, because of emotional, social, and developmental problems. According to Mother, J.E.s significant problems include a speech delay, an academic delay, anger, being emotionally shut-down, temper tantrums, threatening to kill people, difficulty interacting with his peers, difficulty adjusting to changes in his routine, his need for one-on-one supervision, and his slow progress in therapy. This argument is not supported by the record.

First, a number of these issues existed at or around the time J.E. was removed from Mothers custody but improved significantly or resolved entirely by the time of the section 366.26 hearing. For example, when J.E. entered foster care, he would point at things and make grunt noises instead of speaking. He progressed to speaking in complete sentences, and by March 2009, although he had some difficulty pronouncing certain letters, it was not significant enough to qualify for speech therapy. Similarly, the academic delay that was noted in August 2008 when he started kindergarten had been erased by March 2009, and he was performing at grade level. Regarding J.E. s problems with anger, temper tantrums and making threats, and his difficulty with peers, the evidence Mother cites is the May 2008 status review report. However, the March 2009 report stated that he had adjusted well to his concurrent placement, was showing less anxiety and regressive behavior, and was getting along well with peers and adults. The report contains no mention of threats or tantrums.

Second, none of Mothers citations to the record support her contention that J.E. has only made slow progress in therapy, the suggestion being that his progress has been unsatisfactory somehow. Similarly, Mothers characterization of J.E. as emotionally shut-down is not supported by the record. At the section 366.26 hearing, Mothers counsel cross-examined the social worker:

[Mothers Counsel]: And is [J.E.] currently in therapy?

[Social Worker]: Yes, he is.

[Mothers Counsel]: How often does he attend therapy?

[Social Worker]: Weekly.

[Mothers Counsel]: In the last 5 months in therapy has the issue of contact with his mother come up?

[Social Worker]: My understanding from the therapist is that when the therapist tries to talk to him about that subject he resists talking about it. And hell also say he just doesn't want to see his mother, and he just does not want to explore that. But the therapist has seen some aggressive play, not so much now, previously after visits.

[Mothers Counsel]: Will I be correct in stating that it appears that [J.E.]s emotions regarding his feelings regarding his mother are just totally shut down?

[Social Worker]: I cannot professionally say if thats the case. . . .

[Mothers Counsel]: Ms. Scrutchins, have you talked to the therapist regarding how [J.E.]s unwillingness to discuss his feelings regarding his mother affects [J.E.]?

[Social Worker]: I dont know if we have hit on it quite like that. But [J.E.] is resistant to talking about his mother.

[Mothers Counsel]:  . . . The Department is of the opinion that [J.E.] is an adoptable child?

[Social Worker]: That is correct.

[Mothers Counsel]: Has the Department taken into consideration [J.E.]s emotional state regarding his findings of adoptability.

[Social Worker]: Yes.

[Mothers Counsel]: Has the Department taken into consideration [J.E.]s inability to deal with his emotions regarding his mother as it relates to his adoptability?

[Social Worker]: I would say that the Department sees that as two different issues. In other words, that this child can be resistant to talking about his feelings about his mother and he is still adoptable.

The social worker did not accept Mothers counsels suggestion that J.E. was emotionally shut-down; nor does Mother provide any other evidence in support of this characterization. The other issues Mother identifiesJ.E.s difficulty adjusting to changes in his routine and his need for constant attention and supervisionwere identified by his foster mother, along with the ways she and her family work with J.E. to meet his needs and help him feel safe.

The cases Mother cites in which a trial courts finding of adoptability was overturned on appeal are readily distinguishable. Amelia S., supra, 229 Cal.App.3d 1060, involved 10 siblings who were placed in five different foster homes. (Id. at pp. 1062-1063.) Two sets of foster parents were considering adopting five of the children; the other foster parents were not interested in adoption. (Ibid.) The children had various developmental, physical and emotional problems, some of which were serious. (Id. at p. 1063.) In reversing the finding of adoptability, the appellate court stated: [T]he permanency hearing report indicated a few foster parents were considering adoption. This is a far cry, however, from the clear and convincing evidence required to establish the likelihood of adoption. (Id. at p. 1065.) Similarly, Asia L., supra, 107 Cal.App.4th 498, involved a sibling group and only a willingness to consider adoption. The two older children were placed in one foster home; the younger child in another. (Id. at p. 504.) The two older children were generally healthy physically, but had emotional and psychological issues that would require specialized placement. (Id. at p. 512.) Reversing the juvenile courts finding that the children were adoptable, the appellate court explained that the foster parents willingness 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. (Id. at p. 512.)

Here, J.E. is not part of a sibling group, nor does he have serious disabilities such as those at issue in Amelia S. and Asia L. that would make him difficult to place. Unlike the foster parents in both Amelia S. and Asia L., the foster parents here are committed to adopting J.E. and have already been approved by the Bureau as adoptive parents.

In In re Jerome D., supra, 84 Cal.App.4th 1200, where the mothers former boyfriend was willing to adopt the nine-year-old boy, the court held there was insufficient evidence to support a finding of adoptability. Although the former boyfriend had a history of domestic violence with the mother and was listed as a perpetrator with Child Protective Services, the Agency did not intend to initiate a home study until mothers parental rights were terminated. (Id. at p. 1205.) In addition, although the Agencys assessment referred to the childs good mental and physical health and sociability, it did not indicate whether there were any approved families willing to adopt a child of his age, physical condition and emotional state. (Ibid.) The assessment also did not consider the child's close relationship with his mother or his prosthetic eye, which required care and treatment. (Ibid.)

In this case, the prospective adoptive parents had an approved home study and had completed the necessary classes. J.E. had essentially no relationship with his mother, by his own choosing. J.E. did require ongoing treatment for his burns, but the foster family had demonstrated their ability and willingness to do so.

Finally, in In re Brian P. (2002) 99 Cal.App.4th 616, 624, the social workers testimony that the child was adoptable, standing alone, was insufficient to support the finding that he was adoptable. The court noted that there was no adoption assessment report and found that the fragmentary and ambiguous evidence about the childs age, physical condition, and emotional state raised as many questions about his adoptability as it answered. (Id. at pp. 624-625.)

Here, in addition to the social workers testimony that J.E. was adoptable, the court also had the Bureaus reports that described a happy, healthy and developmentally on-target six-year-old who had adjusted well to life with his concurrent family and wanted them to become his forever family. Also before the court was the concurrent family with an approved home study, devoted to J.E. and anxious to adopt him. The prospective adoptive parents were well aware of J.E.s emotional issues yet never wavered in their commitment to adopt him. The evidence is sufficient to support the courts finding of adoptability.

IV.  DISPOSITION

The order appealed from is affirmed.

_________________________

Haerle, J.

We concur:

_________________________

Kline, P.J.

_________________________

Richman, J.

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1] All further statutory references are to the Welfare and Institutions Code except as otherwise noted.

[2] Mother has five children. A petition was also filed on behalf of J.E.s half-brother, two-year-old E.G. Maternal relatives told police that Mother cared for E.G. appropriately because he was the son of Mothers boyfriend. At the detention hearing on September 21, 2007, E.G. was removed from Mothers care and placed with his father who lived with the paternal grandparents. J.E.s three older half-siblings were already living with the maternal grandmother.

[3] The juvenile court also granted the foster parents de facto parent request and ordered that they be designated as J.E.s prospective adoptive parents.