In re K.S.

Filed 12/17/08 In re K.S. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)

K. S., Sr., (appellant), the father of K.S., Jr., and Km. (the minors), appeals from orders of the juvenile court denying his petitions for modification and terminating his parental rights. (Welf. & Inst. Code,  366.26, 388, 395; further undesignated statutory references are to the Welfare and Institutions Code.) Appellant contends the juvenile court abused its discretion in denying his petitions for modification. Appellant also claims the order terminating parental rights must be reversed because the evidence was insufficient to support the courts finding it was likely the minors would be adopted. Disagreeing with both of these claims, we affirm.^[1]

FACTUAL AND PROCEDURAL BACKGROUND

On February 1, 2007, Sacramento County Department of Health and Human Services (DHHS) filed original juvenile dependency petitions pursuant to section 300 on behalf of the minors. Those petitions alleged appellant had a substance abuse problem that impaired his ability to provide adequate care for the minors. Appellant was incarcerated, awaiting trial on narcotics charges.

The juvenile court sustained the petitions, adjudged the minors dependent children, and ordered DHHS to provide reunification services to appellant. The minors were placed together in foster care. After appellant was released from custody, he visited the minors on a sporadic basis, citing work conflicts. Those visits went well. Appellant failed to comply with most components of his reunification plan.

On November 29, 2007, the juvenile court terminated appellants reunification services. Thereafter, DHHS concluded the minors were generally adoptable. Although they were not in an adoptive home, DHHS noted the minors were young, healthy, and had no major behavior problems, except for Km.s [o]ppositional [a]ggressive problem. Moreover, although Km. also had two speech delays, he was scheduled for speech therapy.

Both minors were doing well in foster care and otherwise meeting developmental milestones for their age group. The minors had developed a close relationship with their foster mother. As for appellants visitation with the minors, the pattern of his scheduled weekly visits with them was described by the social worker as inconsistent.

On March 19, 2008, appellant filed petitions for modification, seeking either return of the minors to his custody or an additional period of reunification services. Those petitions alleged appellant had engaged in counseling and was visiting the minors regularly. According to appellant, it was in the best interests of the minors to have a safe and stable home and their permanence is of the utmost importance and they can achieve that through placement with appellant.

At the April 8, 2008, hearing on the modification petitions and on selection of a permanent plan for the minors, appellant testified, admitting he had missed many visits with the minors and had failed to participate in substance abuse treatment or submit to drug testing. According to appellant, it was difficult for him to comply with those requirements due to a conflicting work schedule. However, while incarcerated, appellant had completed a set of parenting classes, and recently appellant was engaged in counseling.

At the conclusion of appellants testimony, counsel for appellant argued appellant had established changed circumstances and that the best interests of the minors would be promoted by granting the modification petitions. According to appellants counsel, the minors could be returned safely to appellants custody immediately, or after a period of six months during which appellant received additional services.

The juvenile court denied the petitions, finding a lack of changed circumstances or a sufficient showing that the best interests of the minors would be promoted by placing the minors with appellant or granting him additional reunification services. In doing so, the court stated in part as follows: The Court has listened to the evidence and has considered the reports already in evidence in this matter. The parent -- a parent may bring a petition for modification of any order of the juvenile court pursuant to Section 388 based on new evidence or a showing of changed circumstances and thats 388 and now Rule of Court 5.570(a)(7). The parent requesting the change of order has the burden of establishing that the change is justified and the standard of proof is by preponderance of the evidence. . . . [] The best interests of the child are of paramount consideration when a 388 as here has been brought after termination of reunification services. . . . [] In assessing the childs best interest the juvenile court looks not to the parents interest in reunification but to the needs of the child for permanence and stability . . . . [] In ruling on a petition for modification the juvenile court may consider the seriousness of the problem which led to the dependency, the reason for any continuance [sic] -- continuation of that problem, the strength of relative bonds between dependent children to both parent and caretakers and the degree to which the problem may be easily removed or ameliorated and the degree to which it actually has been. . . . [] . . . . [] It is good that [appellant] has completed parenting classes. It is good that he has been going to counseling. I congratulate him on those efforts. Anger control or otherwise, [sic] but it is not the reasons -- not the only reasons the children were brought before this Court. Anger control counseling is separate and apart in my mind from domestic violence counseling. It is beneficial to that end but its not the only thing that we would look at to see if a domestic violence problem has been ameliorated. [] Substance abuse counseling is what was needed here. Substance abuse treatment, the 12-step program, the testing to establish that you are clean, to show that you are clean is what is needed, and those have not been done. []

. . . I do believe there is a type of bond between [appellant] and [K.S.] The reports talk about that and the reports mention that the bond between the younger child and the parents is basically nonexistent but even granting a type of bond or a recognition that these are my parents the analysis doesnt end there. The degree to which the problem may be easily removed or ameliorated I dont see that the problem is easily removed or ameliorated at this point. The parents had an opportunity to partake in services and failed to do so. The degree to which it actually has been Ive addressed. It has not been. . . . []

. . . . [] Again the childs best interest[s] are of paramount consideration when the petition is brought after termination of services and so the Court [is] then looking at permanence -- must look at the permanence and stability for the children. And so a petition which merely alleges changing circumstances, which one could argue [appellant] is making, would mean delaying the selection of a permanent home for a child to see if a parent who has repeatedly failed to reunify with the child might be able to reunify at some future point and this does not promote stability for a child or the childs best interest. . . . [] . . . . [] In looking at [appellants] 388 here it is for placement of the children with him. The Court cannot find that he has met this burden to establish that the children would be safe in his care, that the problems that led to the childrens removal from the parents and placement in foster care [have] been ameliorated and, therefore, the only real alternative then to the Court is to reinstate reunification services and that would result in a further period of uncertainly for these children and they are indisputably, in my mind, adoptable. . . . [] . . . In most cases a parents circumstances have not changed sufficiently to permit placement with that parent of an otherwise adoptable child. Reopening reunification does not promote stability for the child or the childs best interests . . . . [] Under these childrens circumstances a modification that would entail anything short of a [permanent] placement . . . would run counter to the childrens needs for prompt resolution of their custody status.

Appellant objected to the recommendation of DHHS to terminate his parental rights. Adoptions social worker Dorothy Robertson testified she had seen the minors on four occasions. According to Robertson, the minors foster mother had expressed some concerns about Km. Km. was misbehaving in certain situations. At one point, in fact, the foster mother had reported Km. was getting out of control. Despite that report, the social worker continued to believe Km. was generally adoptable. She described Km.s behavior as age appropriate.

At the conclusion of the hearing, the juvenile court found it likely the minors would be adopted and terminated appellants parental rights. In doing so, the court stated in part as follows: The evidence before the Court is clear and convincing these children are adoptable. . . . [] We do have evidence before the Court that they are age-appropriate behaviors and that is a social worker with four years before this -- in this jurisdiction and a masters degree in social work who testified that these are age-appropriate behaviors and that is the best evidence before the Court that they are, in fact, age appropriate, independent from ones own instincts or common knowledge about behaviors in children. There is certainly nothing that Ive heard with regard to the childs behavior -- [Km.s] behavior that would point to a child who is not adoptable. [] . . . . [] Looking at these childrens age[s] we have a child of two years, nine months, a little over that now and six years. These are children who are young. Their physical conditions are such that theres no reason to believe that they have health problems that would prevent adoption. They do not have emotional problems other than whats been voiced regarding parents failing to show up for visits that would cause one concern. None of those things make[s] it difficult to find a person willing to adopt the minor -- the children. [] The Court notes as in the case of In Re: Sarah M. that it is not necessary that the children be in a potential adoptive home or that there even be a prospective-adoptive parent which is the case here. These children, however, are likely to be adopted. That is what the statute tells me I must look at. Is there clear and convincing evidence the children are likely to be adopted? And the answer to that question is, Yes, there is. It is clear and convincing. They are healthy. They have no major behavioral problems, and they are doing well in foster care, meeting their developmental milestones and thats independent from a speech issue with regard to [Km.] which hopefully will not only be monitored but for which he will be able to increase his ability in speech, and I think that the evidence before the Court is hes already made improvements. [] The report as mentioned discusses the fact that there is a bond between, specifically, [K.S., Jr.] and his parents, not so much as to [Km.] and the parents. I think that to deny a type of bond between the parents would be wrongheaded of me. Thats not the way the evidence is. I think theres a bond but as has been pointed out its not simply just enough to say theres a bond.

DISCUSSION

I

Appellant contends the juvenile court abused its discretion in denying his petitions for modification because he established changed circumstances and new evidence demonstrating reunification was in the best interests of the minors.

Section 388, subdivision (a), provides that a parent of a dependent child may petition the juvenile court upon grounds of change of circumstance or new evidence . . . for a hearing to change, modify, or set aside any order of court previously made . . . . Section 388 permits modification of a dependency order if a change of circumstance or new evidence is shown and if the proposed modification is in the best interests of the minor. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526 (Kimberly F.).)

When a petition for modification is brought after the end of the reunification period, the best interests of the child are the paramount consideration. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) In assessing the best interests of the child at this stage of the proceedings, the juvenile court looks to the childs needs for permanence and stability. (Ibid.)

The party petitioning for modification has the burden of proof by a preponderance of the evidence. (In re CaseyD. (1999) 70 Cal.App.4th 38, 48.) A modification petition is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)

In denying appellants petitions for modification, the juvenile court recognized he had made efforts to ameliorate the difficulties underlying the dependency petitions. However, doubtless out of its concern for the minors needs, and because appellant failed to undergo substance abuse treatment, the court did not find a sufficient change of circumstances and suggested the best interests of the minors would be promoted by proceeding to the selection of a permanent plan for the minors.

The determination by the juvenile court was well within its discretion. As the record reflects, appellant had made some progress, and his efforts are to be commended. But the record also suggests more time lay ahead for appellant in which he would need to continue to participate in programs. In the meantime, it was likely, as the record suggests, that the minors would continue to develop and attach to adult figures, such as their foster parents, and to future prospective adoptive parents as well.

In his petitions, appellant averred it was in the best interests of the minors to return them to appellant, or to provide appellant with reunification services, to help the minors achieve permanence, presumably due to the close bond they shared. However, at this point in the proceedings, as the juvenile court recognized, the focus of the case had shifted to the minors interests, and it was unreasonable to expect the minors to wait for appellant to establish his fitness as a parent. As the record suggests, appellant requires more time in order to fully develop appropriate parenting skills.^[2]

The difficulty with appellants petitions is his failure to allege pertinent facts in support of his belief that the minors best interests required reunification with appellant. A prima facie showing requires the proffering of facts relevant to the claim made. (In re Edward H. (1996) 43 Cal.App.4th 584, 593.) Mere beliefs, without facts to support them, do not constitute prima facie evidence of a minors best interests. Here, it is not enough to assert, as appellant does, that he should receive custody or services merely because the minors need permanence and are not in an adoptive home. At the time of the hearing on the modification petitions, the minors had been out of appellants custody for more than a year of the minors lives. Appellants petitions are deficient because they contain few, if any, facts relating to the minors current circumstances. Appellants brief emphasizes the strength of his bond with K.S., Jr., and the efforts he was making to become a better parent. But appellant says little about the minors circumstances and feelings. The focus of appellants central argument appears to be on appellant, rather than on the minors. Finally, the record suggests the minors were much more attached to their foster mother than to appellant.

Most importantly, in his petitions appellant did not allege any facts that the minors needs for permanence and stability would be promoted by eventual return to a parent who DHHS believed had not made significant improvement in his situation.

In Kimberly F., supra, the appellate court warned against the juvenile court simply comparing the situation of the natural parent with that of a caretaker in determining a section 388 petition. It termed such an approach the simple best interest test. (56 Cal.App.4th at p. 529.) Instead, the appellate court found that determining a childs best interests under section 388 required an evaluation of a number of factors, including the seriousness of the reason for the dependency action, the existing bond between parent and child and caretaker and child, and the nature of the changed circumstances. (Id. at pp. 529, 532.) The court suggested it was unlikely a parent who lost custody because of sexual abuse of a minor could prevail on a section 388 petition, whereas in a dirty house case, which was present in Kimberly F., the chances of success were greater. (Id. at pp. 531, fn. 9, 532.) In Kimberly F., supra, the court concluded the decision to deny the section 388 petition there was based largely and improperly on the juvenile court judges adoption of the narcissistic personality rationale, which the judge had applied to the mother in that case. (Id. at pp. 526, 527, 532-533.)

In this case, in denying appellants section 388 petitions, the juvenile court discussed at length the factors analyzed in Kimberly F., supra. Moreover, evidence of all of the critical factors contained in Kimberly F., including the basis of the dependency actions, the relationship between appellant and the minors, and the nature of the alleged changed circumstances, was before the court. Moreover, the courts extensive comments about the case suggest it considered carefully all pertinent circumstances. On the record before it, the court concluded that appellant failed to sustain his burden. Under the abuse of discretion standard, we see no error in that determination.

The juvenile court was required by statute ( 388) to focus on the minors best interests in deciding whether to grant the petitions for modification. As we have seen, those interests consist of a minors need for stability and permanence. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) Childhood cannot wait for a parent to establish readiness for parenting. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) Here, the minors had adjusted well in their foster care placement. On the other hand, appellant was still working on the difficulties that had contributed to the dependency proceedings. On this record, it is not surprising that the court suggested the minors should not be forced to wait any longer.

It is true, as appellant notes in his brief, that he was not necessarily seeking the immediate return of the minors to his custody; an alternative, cited by appellant, was an additional period of services for him. According to appellant, the juvenile courts reasons for denying his request were improper. We disagree. The difficulty with appellants scenario, as we have suggested, is that it is unfair to and not in the best interests of the minors for the minors to be delayed permanence for some unknown and indefinite period of time, with no certainty or even likelihood that appellant could progress beyond regular, supervised visits with the minors.

Under the circumstances of this case, the juvenile court did not act arbitrarily, capriciously, or beyond the bounds of reason in denying appellants petitions for modification. The courts determination that the minors need for permanency compelled denial of the petitions and served the minors best interests was reasonable and is supported by the record. (Cf. In re Edward H. supra, 43 Cal.App.4th at p. 594.) In sum, appellant failed to make the necessary showing, as required by section 388, that a modification would promote the best interests of the minors. (Compare In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1416, with In re Heather P. (1989) 209 Cal.App.3d 886, 891.) There was no abuse of discretion or other error in the courts decision. (Cf. In re Daijah T. (2000) 83 Cal.App.4th 666, 673-675.)

II

Appellant claims the juvenile courts order terminating his parental rights must be reversed because the finding by that court that it was likely the minors would be adopted was not supported by substantial evidence. According to appellant, the minors were not adoptable generally, because Km.s behavior and speech problems and the placement history of the minors made it unlikely they would be adopted in a reasonable period of time. Moreover, appellant notes, no specific prospective adoptive homes have been identified. According to appellant, it is possible the minors eventually may be relegated to the status of legal orphans.

When the sufficiency of the evidence to support a finding is challenged on appeal, even where the standard of proof in the juvenile court is clear and convincing evidence, we must determine if there is any substantial evidence--that is, evidence that is reasonable, credible, and of solid value--to support the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination, we resolve all conflicts in favor of the prevailing party. Issues of fact and credibility are questions for the trier of fact, and we do not reweigh the evidence when assessing its sufficiency. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; In re Jason L., supra, at p. 1214; In re Steve W. (1990) 217 Cal.App.3d 10, 16.)

The goal of dependency proceedings is protection of the child. (In re Kerry O. (1989) 210 Cal.App.3d 326, 333.) An important aspect of this goal is to provide children with stable, permanent homes. (In re Heather P., supra, 209 Cal.App.3d at p. 890.) A preference for permanent placement, as afforded by adoption, is a vital component of the statutory scheme. (In re Brian R. (1991) 2 Cal.App.4th 904, 923-924; cf. In re Mark V. (1986) 177 Cal.App.3d 754, 760-762.)

The issue of adoptability focuses on the minor, e.g., whether the minors age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) It is not necessary that the minor already be in a potential adoptive home, or that there even be a prospective adoptive parent. (Ibid.)

The record in this case reflects the minors were in good health. In general, both minors were doing well in foster care and meeting their respective developmental milestones. Admittedly, Km. had exhibited some behavioral problems and also had a speech difficulty. However, Km. was scheduled to begin speech therapy, and his cognitive and motor development scores were average. Based on this evidence, the juvenile court reasonably could find, as it did, that although the record suggests Km. may continue to present some challenges to caregivers, he was likely to be adopted. (Cf. In re RoderickU. (1993) 14 Cal.App.4th 1543, 1550.)

In In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205, cited by appellant, the adoptability finding was based on the willingness of the mothers former boyfriend, a problematical prospect, to adopt the minor. Here, on the other hand, the record reflects the social worker opined there were no foreseeable challenges to finding an adoptive home for the minors. That opinion was based on the young ages and general good health of both minors. Contrary to appellants assertions, the opinion of DHHS was based on evidence of the minors gained in part from the social workers observations of them.

Of course, as we have suggested, the lack of an adoptive home does not preclude a finding the minor is likely to be adopted. (In re Sarah M., supra, 22 Cal.App.4th at p. 1649.) Moreover, the prospect that a minor may have some continuing behavioral problems also does not foreclose a finding of adoptability as to the minor. (In re Jennilee T. (1992) 3 Cal.App.4th 212, 224.)

In In re Tamneisha S. (1997) 58 Cal.App.4th 798, the social services agency was unable, after a 10-month search, to locate an adoptive home for the child. (Id. at pp. 802-803.) Ultimately, the juvenile court granted a guardianship after finding the agency had failed to show the minor was likely to be adopted. (Id. at p. 803.) The court of appeals affirmed the order of guardianship. (Id. at p. 808.)

This case is different from the circumstances found in In re Tamneisha S., supra, 58 Cal.App.4th 798. Here, there has been no excessively lengthy search for adoptive parents and, as we have seen, the minors have shown the ability to form attachments with caregivers. This fact suggests the adoptability of the minors does not depend on the willingness of any particular foster parents to adopt them.

It is true that sometimes special needs children are more difficult to place than those without such needs. For example, in In re Michael G. (1983) 147 Cal.App.3d 56, the minor was developmentally disabled and suffered from serious emotional problems. According to the record in that case, the seven-year-old minor functioned below his age level, was not completely toilet-trained, and possessed limited language abilities. On that record, the court noted all parties had conceded adoptive placement would be difficult. (Id. at pp. 58-59.)

The situation here is different. Although Km. arguably has some special needs, at least pertaining to speech, the evidence before the juvenile court suggested that in general the minors were doing well in their placement. Moreover, as the evidence also showed, the health of the minors was good and the minors had shown they were capable of developing close attachments to new adults in their lives. This evidence tends to refute the claim of appellant that the evidence adduced by DHHS suggests the minors were not generally adoptable.

In re Asia L. (2003) 107 Cal.App.4th 498, 503, 504, 510-511, cited by appellant, involved siblings, five and seven years old, who exhibited significant emotional and behavioral problems and who needed specialized placement. Although the social worker reported that her agency was confident an adoptive home could be located, the minors current foster parents were not committed to adoption, and there was no evidence of other approved families willing to adopt children with the problems faced by the siblings. (Id. at pp. 511-512.) Under those circumstances, the appellate court reversed the juvenile courts finding of adoptability. (Id. at pp. 512, 515.)

Here, there was no evidence that Km.s difficulties would necessitate a specialized placement, or that his speech or behavior difficulties were so severe as to pose an obstacle to adoption. Nor, contrary to the suggestion of appellant, was there anything else about the minor[s] age, physical condition, and emotional state [that would] make it difficult to find a person willing to adopt [them]. (In re Sarah M., supra, 22 Cal.App.4th at p. 1649.) Finally, the sibling set of two was not so large as to pose a significant obstacle to adoption. (In re B.D. (2008) 159 Cal.App.4th 1218, 1222, 1227, 1233 [sibling set of five.].)

In In re Brian P. (2002) 99 Cal.App.4th 616, 624, cited by appellant, the social workers opinion that a child was adoptable was held insufficient to sustain a finding of adoptability where the social worker provided no facts to support her opinion. In contrast to the characteristics of the four-and-one-half-year-old child in that case--he had only recently begun to speak, had problems with his gait, was still learning to dress himself and was only recently toilet-trained--the record here does not reflect that characteristics such as those would create any difficulty in terms of placing the minors for adoption. (Id. at p. 619.) Moreover, in this case the social workers testimony contained specific facts about the minors prospects for adoption.

We reject appellants suggestion the minors were difficult to place as a sibling group due to Km.s behavioral problems and their placement history. Section 366.26, subdivision (c)(3), states in part that a minor may be found to be difficult to place for adoption due to various factors. Here, although the minors were not yet placed in a prospective adoptive home, there was every indication one would be found in a reasonable time. Moreover, the juvenile court made no finding that the minors were difficult to place, and we conclude the record would not support such a finding.

It is true that, during a one-year period, the minors had been in several different foster home placements. However, it is unknown why those placements failed, or why the current foster mother did not wish to adopt. Moreover, both minors generally had adjusted well with an adult figure, their current foster parent, with whom they had been for many months. On this record, we reject as speculative appellants assertion that legal orphanage was a realistic possibility for the minors.

In sum, substantial evidence supports the juvenile courts determination that the minors were likely to be adopted within a reasonable time. (Cf. In re Scott M. (1993) 13 Cal.App.4th 839, 843-844.) As we have seen, the minors are healthy and overall made a good adjustment in foster care. Moreover, the record contains no evidence, contrary to the claims of appellant, suggesting that anything about the personal characteristics of the minors would make it difficult to locate a prospective adoptive home for them. Accordingly, the juvenile court did not err in finding it likely the minors would be adopted.

DISPOSITION

The orders of the juvenile court denying appellants petitions for modification and terminating his parental rights are affirmed.

BLEASE , Acting P. J.

We concur:

DAVIS , J.

NICHOLSON , J.

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^[1] The mother of the minors, K.S., also filed an appeal. However, on September 23, 2008, this court dismissed her appeal, following the mothers failure to file an opening brief.

^[2] For example, during his testimony at the hearing on the petitions, appellant discussed the on-going programs in which he was participating and acknowledged he had yet to receive substance abuse treatment.