In re J.R.
Filed 1/15/13 In
re J.R. CA1/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
In re J.R., a Person Coming Under the Juvenile Court Law.
ALAMEDA COUNTY SOCIAL SERVICES AGENCY,
Plaintiff and
Respondent,
v.
ROSA C.,
Defendant and Appellant.
A135648
(Alameda County
Super. Ct. No.
OJ11017270)
Rosa C. (Mother) appeals from the
order of the
County juvenile court terminating her parental rights as to her son J.R. in
accordance with Welfare and Institutions Code section 366.26.
was adoptable is not supported by substantial
evidence, and (2) the juvenile court abused its discretion in not placing
J.R. with a maternal relative. We conclude
that neither of these contentions has merit, and affirm the termination order.
Much of the history of this matter
was set out in our 2011 opinion denying Mother’s petition for an extraordinary
writ to set aside the order setting the permanent plan hearing. With minor editorial alterations, we adopt it
here:
“J.R. was taken
into protective custody on July 6, 2011,
an original petition filed by the Alameda County Social Services Agency
(Agency) two days later that alleged that Mother and one alleged father each
failed to protect and failed to provide support. (§ 300, subds. (b) & (g).) A second alleged father was identified by the
time of detention, resulting in a petition amendment to add failure to support
as to him. Neither man was ultimately
located, and the facts and proceedings as to them will be given only passing
reference.
been cared for by Jessica C., but Jessica C. expected to give birth to a child
of her own who would need immediate heart surgery, and had no one willing to
take care of J.R. without parental support.
Jessica C. had begun caring for J.R. in May 2010 because her boyfriend
(now gone to be with an ailing parent in Honduras) had known Mother
and was babysitting J.R. when Mother was arrested for selling drugs. Mother was eventually deported to El Salvador. Jessica C. had cared continuously for J.R.
ever since, she and her boyfriend not knowing what else to do. Mother had no family in the area, and neither
she nor either alleged father ever returned for J.R. or provided support. Jessica C. took the child in as her own but
felt taken advantage of because Mother and an alleged father posted on
Facebook.com and, Jessica C. learned through friends, ‘were “partying†and
having fun.’
“Mother, 26 years old, revealed through
a jurisdiction report that she was not married to either alleged father and
that the originally named one, Velasquez, while named on the birth certificate,
was not the biological father. Mother
and Velasquez were arrested in San Francisco in May 2010 for
selling drugs and deported that year.
Mother tried to reenter the country in April 2011 but was ‘arrested in Texas . . .
and subsequently deported back to El Salvador.’ She was unable to send money for his support
because she had just gotten a job and was financially assisting her
siblings. She wanted to bring J.R. home
and had spoken by phone with the other alleged father, Hernandez, who was then
in Canada, but she did not
know where he was now, his number having been disconnected. Mother currently worked two jobs (at a hair
salon and a restaurant) and went to school.
Asked why she left J.R. behind, she said she did not want to but was
being deported. She ‘tried to come back’
for J.R. but was arrested in Texas for attempted
illegal entry, jailed for three months, and deported again. She had two 2009 arrests in San Francisco, one for selling
crack cocaine and the other for a probation violation. She denied ever using drugs.
with Hernandez in late June. He told her
he was sending money and a passport for J.R. but never did. He had since left Canada to go to Honduras. Jessica C. and a daughter were very
emotional, Jessica C. saying J.R. was not immunized because they were worried
they might be arrested or J.R. would be taken from them. She had since spoken with Mother, evidently
by phone, to relate what was going on, and Mother cried and said she wanted her
son. Child welfare worker (CWW) Aaron
Leavy had also spoken with Mother, via a telephone interpreter service, and she
expressed a strong desire to reunite with J.R. in El Salvador. She also told Leary and CWW Sylvia Joyner by
phone that she had a second child, an 11–year–old son, living with her there
and did not want to return to the United States.
“Mother remained in El Salvador throughout these
proceedings. The petition was sustained
in its entirety as to her on August 8, 2011 when her counsel,
after a continuance to investigate, submitted on the jurisdiction report. Failure to protect was based on her being
arrested in May 2010, when J.R. was two months old, her sale of illegal drugs
and deportation, a history of substance abuse and dependence, her criminal
arrest history, her failure to provide J.R. with adequate food, clothing and
shelter, her not providing care, support, or ensuring that J.R.’s medical needs
were met, and his having had no immunizations or any other medical care since
birth. Failure to provide was based on
her arrest and deportation, current residence in El Salvador, failure to
provide support or care, and being unable or unwilling to provide J.R. with
necessary care, support, and supervision.
“While submitting on jurisdiction,
Mother’s counsel did request a contest on the Agency’s proposal to bypass
reunification services, urging that there was no legal basis for it. The matter was continued for that contest to
occur on August 18, at the disposition hearing.
“A disposition
report filed on August 5 urged declaring dependency and bypassing services, but
with the Agency cooperating with the El Salvadorian Embassy (Embassy) and El
Salvadorian Consulate (Consulate) on possible placement of J.R. directly with
Mother if appropriate. CWW Joyner had
spoken with Jose Lagos, a legal counselor on immigration matters at the Embassy
in Washington, D.C. about having
Mother assessed in El Salvador for possible
reunification. Lagos had suggested that
Joyner forward a letter about the case to Ambassador Francisco Altschul to
request the support of the Instituto Salvadoreño de Protección al Menor (the
Institute), which could then contact Mother to gain her approval and begin an
assessment of her readiness for placement.
Lagos gave no timeframe for
completing that process, but advised that J.R. would need a passport if he went
to El Salvador. A second CWW with experience from a similar
case recommended working with Consul General Ana Valenzuela in San Francisco
for the assessment and with a contact from the Office of Homeland Security in
San Francisco to help coordinate legalities for staff transporting J.R. The Agency had also a continuance in its
jurisdiction report to begin these efforts.
“
indicated that she had received paperwork from ‘the CPS Agency in El Salvador’
(evidently the Institute), that Leary and Joyner had sent her a letter and
birth certificate, and ensured that contact information between Mother’s
counsel and Salvadorian officials was given.
A conference call with the Embassy was set for the date of the report,
August 5, 2011.
“The report also related J.R.’s
general success in a bilingual foster home, visits with Jessica C. (halted when
she gave birth three days earlier), progress with vaccinations and medical
care, and need for evaluation of a ‘sacral dimple’ that might indicate spina
bifida. Ongoing assessment was being
made of a nonrelative extended family home suggested by Jessica C.
“Orders made at the August 18, 2011
disposition hearing were based solely on the jurisdiction and disposition
reports, no party putting on testimony or other evidence, and the court agreed
that various statements by counsel all around, while useful for future
investigation, were not evidence for the decisions of the day.
development was that, as the Agency had stated at the jurisdiction hearing in
response to concern by J.R.’s counsel that postponing a plan hearing was not in
his best interest, the Agency was now disposed to set a plan hearing while
considering the progress of the case in the intervening time.
“
court declared dependency, bypassed services to Mother under
subdivision (b)(9) on a finding by clear and convincing evidence of
willful abandonment by Mother, and set a plan hearing for December 8,
2011.†(Rosa C. v. Superior Court (Dec. 19, 2011, A133293) [nonpub. opn.].)
After we denied Mother’s petition, jurisdiction was
reinvested with the juvenile court in February 2012.
hearing, now set for April 5, CWW Loomis prepared a “366.26 WIC Report.â€
Her recommendation was that Mother’s parental rights should be terminated so
that J.R. could be adopted.
CWW Loomis advised the court that J.R. “is adoptable, and
he is placed with a family that is willing to adopt him. The Mother . . . requested that the
maternal grandmother’s home in El Salvador be evaluated for placement if the
minor could not be returned to her.
[¶] Child Welfare Worker Rachel Blumberg has been in ongoing
contact with the Salvadoran Consulate. . . .
[¶] . . . Ms. Blumberg spoke with the maternal grandmother in El
Salvador, who confirmed that she would be willing to take placement of the
minor if he could not be returned to the Mother. The Consulate provided a very brief
evaluation of the home where the Mother and grandmother live together,[
with no significant problems noted.â€
However, since December 2011, “All attempts to reach the Mother and the
Consulate since then have met with no response.â€
Concerning the current foster and prospective adoptive
parents, CWW Loomis reported:
“The foster parents are friends of [J.R.]’s former
caregiver. The husband is 32 years
old, and works in a factory. The wife is
29, and is a stay at home parent. The
wife had three children from a prior relationship, ages 11, 6, and 2. Her parents also reside in the home. The family lives in a 2-bedroom
apartment: the foster parents use one
bedroom, her parents sleep in the living room, and [J.R.] shares the remaining
bedroom with the three other children.
(An exemption was granted to approve this arrangement.)â€
“The foster parents . . . appear able to meet
[J.W.]’s needs. They share his Salvadoran culture.
There is some concern about the difficulties of having eight people in a
two-bedroom apartment. Recently the
foster mother has raised concerns about [J.R.]’s acting out behaviors, but she
and her husband remain committed to adopting him.â€
CWW Loomis’s “Evaluation†concluded as follows: “A family stepped forward to request
placement at the time of the dependency; they knew . . . [J.R.]
through mutual friends. The family
completed the Relative Approval process, and [J.R.] was placed in the home on
11/12/2011. An adoptive home study is in
progress. [¶] The Mother has not
had contact with [J.R.] since he was two months old. Two years have now passed, and [J.R.] is on
his third set of caregivers since his Mother’s absence. The Mother was aware of the steps she needed
to take in order to have any possibility of placement in El Salvador, and she
has not followed through. [J.R.] needs
the security of a family that will be there for him permanently. It is therefore respectfully recommended that
parental rights be terminated so that the child may be adopted. The Mother is opposed to adoption.â€
The April 5 hearing was brief. Mother was not present, but she was
represented by counsel. Without
objection, CWW Loomis’s report was received in evidence, whereupon the Agency
in effect submitted on it. Counsel for
J.R. advised the court that she agreed with the Agency’s recommendation, as
well as “the Agency’s assessment of his adoptability and . . . their
evaluation.â€
Mother’s counsel then addressed the
court: “If my client were able to be
here, I know she would oppose and object to termination of her parental rights
and permanently planning her child to adoption.
I will raise that opposition and object on her behalf. I know that she is also aggrieved by the
bypass of reunification services to her[
and disappointed that the Agency did not do more to place [J.R.] with maternal
family members in El Salvador.
[¶] Those would be her concerns and that’s what she would ask the
Court to consider and I will do that on her behalf, but I fully expect to be
disappointed, quite frankly. Submitted.â€
The juvenile court then terminated
Mother’s parental rights. The court
found “there is clear and convincing evidence that it is likely that the child
will be adopted.†The court also found
that continued placement of J.R. with the Agency “is necessary and
appropriate.â€
Finding That The Minor Is Adoptable
Substantial Evidence
Mother’s firsts contention is
directed against the finding that J.R. was likely to be adopted within a
reasonable time. She details all of the
manifestations of J.R. being “an aggressive two-year old,†and is impressed that the Agency “had no
other prospective families interested in adopting.†Mother concludes from this that because J.R.
has “severe behavioral issues and speech delay;†because the prospective
adoptive parents were not shown to “be able to . . . financially
provide†for J.R.; and because there is only one set of prospective adoptive
parents, “the evidence provides no reasonable assurance that the goal of
permanency for the child will be fulfilled by terminating parental rights and
the risk that the child will be left a legal orphan is high.†Thus, Mother submits that her parental rights
should not have been terminated, and the court should have chosen “ a more
appropriate plan, such as guardianship or relative placement with maternal
relatives in El Salvador.†We are not
persuaded.
“At a section 366.26 hearing, the court
may select one of three alternative permanency plans for the dependent child—adoption,
guardianship or long-term foster care.
[Citation.] If the child is
adoptable, there is a strong preference for adoption over alternative
permanency plans. [Citations.]
“
of adoptability requires ‘clear and convincing evidence of the likelihood that
adoption will be realized within a reasonable time.’ [Citations.]
The question of adoptability usually focuses on whether the child’s age,
physical condition and emotional health make it difficult to find a person
willing to adopt that child.
[Citation.] If the child is
considered generally adoptable, we do not examine the suitability of the
prospective adoptive home. [Citation.] If the court finds the child is likely to be
adopted within a reasonable time, the juvenile court is required to terminate
parental rights unless the parent shows that termination of parental rights
would be detrimental to the child under one of the exceptions listed in section
366.26, subdivision (c)(1)(A) and (c)(1)(B). [Citation.]
“
the record contains substantial evidence from which the juvenile court could
find clear and convincing evidence the child was likely to be adopted within a
reasonable time. [Citations.] We must affirm the juvenile court’s rejection
of any exception to termination of parental rights if the court's findings are
supported by substantial evidence.
[Citation.]
reweigh the evidence, evaluate the credibility of witnesses or indulge in
inferences contrary to the findings of the trial court. [Citations.]
The substantial evidence standard of review is generally considered the
most difficult standard of review to meet, as it should be, because it is not
the function of the reviewing court to determine the facts. [Citation.]†(In re
Michael G. (2012) 203 Cal.App.4th 580, 588-589.)
First of all, the characterization
of J.R as “aggressive†is Mother’s, not CWW Loomis’s: there is no such
description in the “366.26 WIC Report.â€
The prospective adoptive mother, with considerable experience from
raising her own three children, obviously did not believe J.R.’s behavioral
problems were unmanageable, and CWW Loomis agreed, expressing no fears that the
prospective adoptive parents could not cope, and telling the court that J.R.
“is a healthy two-year-old child with no developmental, emotional or behavioral
issues severe enough to preclude adoption.â€
The same is true for the financial ability of the prospective adoptive
parents to assume responsibility for J.R.
The matter of the prospective parents’ crowded living conditions was
obviously considered by the Agency and not deemed an impediment to adoption, as
evidenced by the “exemption . . . for this arrangement†which CWW
Loomis noted the Agency had granted.
Additional factors mentioned—and not
mentioned—by Mother do not disfavor the reasonable likelihood of J.R.’s
adoption. At the time of the hearing,
the Agency was arranging a “speech evaluation†for J.R. And as to J.R.’s physical condition, the
possibility of spina bifida noted in our prior opinion has been ruled out.
Finally, the absence of other
prospective adoptive parents is not significant. Not even one set of prospective adoptive
parents is required. “To be considered
adaptable, a minor need not be in a prospective adoptive home and there need
not be a prospective adoptive parent ‘ “waiting in the
wings.†’ †(In re R.C.
(2008) 169 Cal.App.4th 486, 491.) Courts
have often cited these apt remarks:
“ ‘ “the fact that a prospective adoptive parent has expressed
interest in adopting the minor is evidence that the minor’s age, physical
condition, mental state, and other matters relating to the child are not likely
to dissuade individuals from adopting the minor. In other words, a prospective adoptive
parent’s willingness to adopt generally indicates the minor is likely to be
adopted within a reasonable time either by the prospective adoptive parent or
by some other family.†’ †(In re Gregory A. (2005) 126
Cal.App.4th 1554,1562, quoting In re Asia
L. (2003) 107 Cal.App.4th 498, 510.)
We conclude that the juvenile
court’s finding of adoptability is supported by substantial evidence.
Abuse Its Discretion In Not Placing
Relative
Mother’s
challenge to the placement begins with the denial of her petition, a week
before the termination, to change J.R.’s name so that he could secure an El
Salvadoran passport. She terms this an
abuse of the court’s discretion which had the consequence of “effectively
denying [J.R.’s] placement with [his] maternal grandmother.†“Moreover, the Agency failed to make diligent
efforts to investigate maternal grandmother or other maternal relatives as
possible caretakers when [J.R.] needed a new placement.†Mother's roundhouse conclusion is that the juvenile
court “failed to make any independent judgment of the suitability of the
maternal grandmother’s home†and “never exercised its independent judgment to
assess [J.R.]’s best interests regarding placement.†We agree with none of this.
The juvenile court denied without
prejudice Mother’s motion to change J.R.’s name after hearing opposition from
counsel for the Agency and J.R. Their
opposition was primarily that granting the motion would have bureaucratic complications
that, in the words of Agency’s counsel, “could very well cause and delay in the
.26 Hearing and/or adoption.†With that hearing only a week away, the court’s
denial cannot be termed an abuse of its discretion.
The determination
of J.R.’s placement “was committed to the sound discretion of the juvenile
court, and the trial court’s ruling should not be disturbed on appeal unless an
abuse of discretion is clearly established. . . . [W]
custody determination in a dependency proceeding, ‘ “a reviewing court will not disturb
that decision unless the trial court has exceeded the limits of legal
discretion by making an arbitrary, capricious, or patently absurd determination
[citations]. †’ [Citations.] And
we have recently warned: ‘The
appropriate test for abuse of discretion is whether the trial court exceeded
the bounds of
deduced from the facts, the reviewing court has no authority to substitute its
decision for that of the trial court.’
[Citations.]†(In re Stephanie M. (1994)
7 Cal.4th 295, 318-319.)
The
issue of whether J.R. “needed a new placement†presumes the inadequacy of the
current placement with the foster and prospective adoptive parents. There is nothing in the record to validate
such a presumption. Nor is there
anything in the record identifying “other maternal relatives†beside the
maternal grandmother as “possible caretakers.â€
Mother tries to finesse that omission by attacking the Agency for not
seeking them out and having them evaluated as caretakers for J.R., and “never
gave maternal grandmother a fair chance to seek placement.â€
Although there are hints Mother
still entertains hope of having J.R. placed with her, that is clearly not
feasible. It is impossible to imagine a
juvenile court pulling a small child out of a stable environment with
prospective adoptive parents and sending the child to a different country to a
parent who abandoned the child when he was two-months-old and has not seen him
since then. Substituting the grandmother
for the mother is hardly an improvement.
There is nothing in the record establishing that the grandmother has
ever seen J.R., so there is obviously no existing emotional bond with her. Mother’s attempt to blame the Agency for an
incomplete investigation is decisively refuted by what CWW Loomis reported to
the court: “The Mother was aware of the
steps she needed to take in order to have any possibility of placement in El
Salvador, and she has not followed through,â€
and “All
attempts to reach the Mother and the Consulate since then have met with no
response.†In these circumstances, it is
difficult to conceive how the Agency can be faulted for a lack of diligence.
“In any custody
determination, a primary consideration in determining the child’s best interest
is the goal of assuring stability and continuity. [Citation.]
‘When custody continues over a significant period, the child’s need for
continuity and stability assumes an increasingly important role. That need will often dictate the conclusion
that maintenance of the current arrangement could be in the best interests of
that child.’ †[Citations.] [¶] . . . [¶] After
the termination of reunification services, the parents’ interests in the care,
custody and companionship of the child are no longer paramount. Rather, at this point ‘the focus shifts to
the needs of the child for permanency and stability’ [citation], and in fact
there is a rebuttable presumption that continued foster care is in the best
interests of the child.†(
By contrast, a grandmother’s interests “[are] not significant compared
to the need of the child for stability.â€
(Id. at p. 324.) CWW Loomis was emphatic on this need of J.R
There is nothing in the
record substantiating accusation that the juvenile court
“failed to make any independent judgment of the suitability of the maternal
grandmother’s home.†Equally baseless is
the claim that the court “never exercised its independent judgment to assess [J.R.]’s
best interests regarding placement.†The
record does demonstrate that the J.R.’s interests were indeed paramount in the
court’s mind at all times following our disposition of Mother’s writ
petition.
We conclude that
the juvenile court did not abuse its discretion in its placement decision.
The order is affirmed.
_________________________
Richman,
J.
We concur:
_________________________
Kline, P.J.
_________________________
Haerle, J.
name="_ftn1" title="">[1] Statutory references are to the Welfare and Institutions Code.
name="_ftn2" title="">[2] All unspecified further dates are in 2012.
