In re M.C.

Filed 1/22/09 In re M.C. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from an order of the Superior Court of Los Angeles County, Sherri Sobel, Referee. Affirmed.

Lori A. Fields, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Byron G. Shibata, Associate County Counsel, for Plaintiff and Respondent.

_________________________

Ma.G. (mother) appeals an order terminating her parental rights as to her three children. We reject her claims of error and affirm the order.

FACTS AND PROCEDURAL BACKGROUND

1. Detention.

The Department of Children and Family Services (DCFS) filed a dependency petition on August 2, 2006, with respect to mothers three children, two sons, M.G. (2001) and J.G. (2002), and a daughter, M.H. (2004). As eventually sustained, the petition alleged mother and V.H., M.H.s father, placed the children in a detrimental and endangering situation by committing theft while the children were in their care. The detention report noted the family has been the subject of a voluntary family maintenance agreement since January of 2006 based on substantiated allegations of general neglect. The theft incident, which occurred about two blocks from mothers home, involved the stripping of a stolen vehicle while the children played in the gutter. All three children were detained and placed in foster care.

2. Implementation of the case plan.

On August 22, 2006, the juvenile court granted DCFS discretion to place the children with any appropriate relative with a clean background check and the concurrence of the childrens attorney.

An interim review report prepared for a hearing on October 3, 2006, indicated the children were placed with maternal grandmother on September 23, 2006. Maternal grandmother stated she loved the children and wanted to care for them. Mother remained in jail.

On October 6, 2006, mother submitted to the jurisdiction of the juvenile court and the juvenile court declared the children dependents under Welfare and Institutions Code section 300, subdivision (b).

An addendum report prepared for a January 5, 2007 hearing indicated mother had been released from jail and was living with V.H. and they were staying with friends or in hotels. Maternal grandmother reported mother and V.H. visited the children on a weekly basis. Either maternal grandmother or maternal aunt, I.V., monitored the visits. The report noted mother and V.H. interacted well with the children. However, M.G. and J.G. disrespected maternal grandmothers rules. J.G.s therapist reported J.G. was making gradual progress. The report concluded by indicating maternal grandmother recently requested removal of all three children because her health has deteriorated over the last few months.

On January 5, 2007, the juvenile court ordered DCFS to provide the parents family reunification services.

An information form filed April 2, 2007, indicated the childrens therapist, Laura Krell, MA, MFTI, had concerns that maternal grandmother and maternal aunt have not provided adequate attention, intervention and comfort for the children. Krell recommended maternal grandmother have day visits only until a therapist deemed liberalization appropriate. Krells report, dated March 22, 2007, indicated M.G. was a victim of neglect, exposure to domestic violence, parental use of illegal drugs and parental stealing. M.G. and his siblings also experienced severe physical abuse by mother and V.H. The children initially were placed in foster care, then were placed with maternal grandmother until she reported she was unable to care for them. The children were returned to the same foster care-provider with whom they initially were placed. When M.G. began treatment, his caregivers reported he was defiant and stubborn. Maternal grandmother indicated M.G. fought with his brother, J.G., multiple times per day, whenever they were together. M.G. would hit, use profanity and was unable to play with J.G. without fighting. M.G. had not been prescribed psychotropic medication. M.G.s treatment focused on decreasing his defiance and developing appropriate social skills. M.G. had made some progress but Krell believed M.G. was being hindered by family dynamics. Maternal grandmother reported mother lived for some time at maternal grandmothers home while maternal grandmother cared for the children. Also, maternal grandmother interacted minimally with the children, did not implement appropriate limits and repeatedly indicated she felt overwhelmed by the children and did not feel she could handle them. When M.G. and J.G. fought in the waiting room, neither maternal grandmother nor maternal aunt reprimanded M.G. or comforted J.G. Foster mother began attending family sessions to decrease the dysfunctional family dynamic and fighting between the brothers. Foster mother at first reported the fighting between the brothers had declined. However, she clarified that she achieves this only by keeping the brothers separated whenever possible. Krell noted the brothers displayed significant difficulty engaging in interactive play, with both attempting to dominate and control play. On one occasion, the brothers were able to engage in a highly controlled interactive game in which they worked together to achieve a goal.

A status review report prepared for April 22, 2007, indicated the children continued to reside in the home of the foster mother and her daughter who reported the children have been eating, sleeping and behaving appropriately.

On May 7, 2007, the juvenile court found the parents were not in compliance with the case plan, terminated family reunification services and set the matter for a permanency planning hearing on August 31, 2007.

3. The permanency planning phase.

A status review report prepared for August 31, 2007, indicated the children had weekly unmonitored visits with maternal grandmother. Foster mother reported the children appear happy in maternal grandmothers care and there are no signs of abuse. However, the children exhibit defiant behavior and use vulgar language toward foster mother after visits with maternal relatives. Visits with maternal grandmother were postponed until a social worker could meet with maternal grandmother and maternal aunt to reinforce the supervision requirements for these visits. Foster mother reported J.G. stated he could call her names and misbehave because his cousins who live with maternal grandmother told him to. According to the report, foster mother intended to pursue adoption of M.H. and was in the home study process.

A social report prepared for the permanency planning hearing on August 31, 2007, indicated M.H. was highly adoptable. However, due to a change in the adoption application from foster mother and her daughter to foster mother and her husband, a bilingual social worker had to be assigned to the case, causing delay of the home study.

A status review report as to M.G. and J.G. filed for a hearing on October 15, 2007, indicated the children continued in the home of the foster mother and her adult daughter. DCFS had been working to secure a more permanent placement for these children in the event M.G. and J.G. are unable to reunify with their father. The report indicated: Based on the age of the children and focusing on the fact that both [M.G.] and [J.G.] are two healthy young boys, the []current plan for the children will be adoption. In addition, given the fact that these boys along with their younger sister . . . have [been] in placement together since the date of their detention, and the children appear to have a strong sibling bond and attachment, DCFS recommends that the children be adopted as a sibling group and not be separated. The report indicated that, after the children began two-hour unmonitored visits with maternal grandmother and maternal relatives, foster parents and the childrens therapist noticed deterioration in the childrens behavior to the point that J.G. had two enc[o]pretic accidents. In addition, M.G. and J.G. began to demonstrate a more aggressive attitude toward each other and their peers. All the children, including M.H., began using profanity towards each other and foster mother.

Foster mother indicated that if the childrens behavior did not improve, she may adopt M.G. and M.H. only, noting J.G. displays more delinquent and aggressive behavior than the other two children. Foster mother believed J.G.s behavior will not be easy to control, even with psychotherapy, given that both boys have been participating in individual therapy since September 2006 without any major improvement in behavior. Foster mother reported J.G. began acting out more after he and his siblings began unmonitored visits with maternal relatives on a regular basis. The minors therapist, Amy Consineau, Ph.D., strongly recommended the childrens visits with maternal relatives be monitored by DCFS personnel in a neutral setting. During this period of the supervision, none of the parents had any visits with their children.

Attached to the report is a progress report dated September 24, 2007. In the report, Laura Krell, LMFT, M.G.s therapist, indicated that, since the last report, M.G. attended 21 sessions. He attempted to control and dominate the sessions. His verbal language sometimes includes gangster phrases and aggressive body language. The report noted M.G.s defiance gradually decreased to the point he was able to engage in joint activities with J.G. The therapist noted it was significant that M.G.s behavior improved most after visits with maternal family were halted. When the visits were resumed, M.G.s behavior declined drastically, regressing back towards the beginning of treatment. He is defiant, refuses to listen and refuses to accept timeout consequences. M.G. also has acted aggressively at school. Krell observed, The maternal familys inability to maintain an appropriately safe, secure, and monitored environment for [M.G.] and his siblings has been consistent from the beginning of treatment. The report noted M.G. and J.G. are no longer allowed into the neighborhood market near the maternal family residence because of repeated incidents of stealing. The therapist noted M.G. and J.G. are both very aware of their mothers history of theft, both having used the slang phrasing of jacking items, in therapy. Krell recommended monitored visits for maternal grandmother and continued therapy for M.G..

J.G. initially was seen by Krell who found J.G. had been affected by exposure to his mothers drug abuse and the experience of physical abuse had resulted in impaired social and emotional functioning. J.G. exhibited aggressive and defiant behavior and fought with his brother. Krell discharged J.G. after one month because the severity of his separation anxiety made it difficult for him to participate in therapy. His case was reopened on May 3, 2007, and he has attended 17 weekly sessions with Amy Cousineau, Ph.D. These sessions involve individual play therapy and family therapy. J.G. initially was withdrawn and verbalized fears his foster mother would leave him. He responded well to praise and positive reinforcement. He has also been able to respond appropriately to limit setting and has improved his ability to interact appropriately with his brother in family sessions. After a visit with maternal grandmother, J.G. stole a candy bar at the market and has been talking about jacking things when he grows up so they can be like his mother. After a recent visit that ended dramatically, J.G. had two . . . enc[o]pretic accidents and has increased the fighting with his brother. J.G. disclosed to the therapist that he has contact with V.H. during visits with maternal relatives and his maternal cousins have taught him swear words.

An addendum report filed November 30, 2007, with respect to M.H. indicated the adoptions worker conducted a home visit with foster mother on September 14, 2007. Foster mother had applied to adopt only M.H. and had requested removal of M.G. and J.G. from the home. Foster mothers husband failed to appear for the visit and foster mother was not responsive to the social workers questions. The foster mothers adult daughter was M.H.s primary caretaker and answered questions for foster mother. The worker asked the daughter if she were interested in adopting but she declined. The social worker concluded this home would not be an appropriate adoptive setting for M.H. and indicated the matter would be referred to placement and recruitment to find an adoptive home for all three children.

4.      The children are placed with prospective adoptive parents.

The social report prepared for a permanency planning hearing under section 366.26 on March 25, 2006, indicated the children were matched with prospective adoptive parents on February 15, 2008. Day and overnight visits went extremely well and the children were placed with the family on March 2, 2008. The children developed a good relationship with prospective adoptive parents and were soon ready to make the transition of moving in to prospective adoptive parents home. The children have developed a warm and affectionate relationship . . . . The report indicated the prospective adoptive parents have shown they are very capable of handling the needs of the children. They have provided the children with appropriate love and nurturing along with stimulation and attention. Prospective adoptive parents have raised a son of their own who is well taken care of and is doing great in school. Prospective adoptive parents stated they are a very close family and they love doing things together.

The report indicated the prospective adoptive parents consisted of a 52-year-old male, who had been a teacher for 23 years and gives the impression of being rather quiet and gentle, and a 52-year-old female who is very direct and a bit feisty in her manner, with strong opinions. The prospective adoptive parents have been married since August of 2002. Prospective adoptive father previously was married from April of 1989 until March of 1998.

An addendum report prepared for March 25, 2008, indicated the prospective adoptive parents home study had been approved. The report recommended termination of parental rights.

On March 25, 2008, the juvenile court continued the hearing to June 24, 2008, to investigate placement of the children with maternal aunt, I.V., and because more time was needed for the children to settle into their new placement.

An addendum report filed April 26, 2008, recommended against placement of the children with maternal aunt based on a review of the case and the reports from the childrens therapists which recommended the children have no contact with maternal relatives, including maternal aunt and her children, because they are negative influence on the children. Also, in December of 2006, when maternal grandmother requested removal of the children from her care due to her poor health, maternal aunt refused to care for the children even though she resided with maternal grandmother because she was employed part-time and had three children of her own, ages eighteen, ten and three years. Further, maternal aunt plans to move to North Carolina. The report recommended the children remain together in their current placement with prospective adoptive parents. This placement meets the childrens needs for stability and permanency. . . . [The prospective adoptive parents] are very interested in adopting all three siblings. Their current placement allows the children to have more individualized attention necessary for their growth and development . . . and in addition, there are no other young children in the home that would require intensive supervision and therefore freeing the couple to dedicate more attention to these young children.

On April 28, 2008, the juvenile court continued all previous orders in effect and set the matter for a permanency planning hearing on June 24, 2008. At the hearing, the juvenile court asked if DCFS was under the impression maternal aunt was entitled to preference in placement. Counsel for DCFS responded the juvenile court had ordered an investigation into the placement and noted the issue had been raised because the children recently had been moved from foster care and placed with prospective adoptive parents. At that point, the childrens counsel added, And, Your Honor, for your information, theyre in an absolutely terrific place. Just terrific.

The juvenile court indicated the children have been in the adoptive home since the beginning of March and the childrens therapists indicate the children are doing extremely well other than when they see family members. The juvenile court concluded maternal aunt would not be able to provide an appropriate adoptive home for the children and continued the matter. The juvenile court ordered monitored visitation for maternal relatives.

An addendum report prepared for June 24, 2008, indicated an extended maternal relative had requested investigation of her family for placement of the children and that she was interested in adopting all the children. She did not come forward sooner because she believed her cousin, maternal aunt, would have preference over her.

On June 24, 2008, the childrens counsel advised the juvenile court these children have now been placed in their adoptive home for approximately five months. They are adjusting absolutely beautifully. The [prospective adoptive] parents, have had their home study completed for quite some time and there is absolutely no reason to move them at all at this point. None. The childrens counsel requested a contested hearing on termination of parental rights at the earliest possible date. The juvenile court ordered DCFS to do what was necessary to investigate the relative but noted case law established that the issue of relative placement preference could not be raised at this juncture of the case. The juvenile court indicated it would have a report on the matter by the date of the contested permanency planning hearing.

On July 7, 2008, mother withdrew her contest and the juvenile court terminated parental rights and freed the children for adoption. At the close of the hearing, the childrens counsel indicated, Your Honor, just for the record, I indicated at bench that I did have all of the children and their preadoptive parents in my office two weeks ago. [] The children are just doing outstandingly well and they are, of course, in counseling. But the [prospective adoptive parents] are taking care of their needs very, very well . . . . The childrens counsel indicated the prospective adoptive family was attending a candle lighting ceremony that week.

CONTENTIONS

Mother contends the evidence does not support the juvenile courts finding that M.G. and J.G. are adoptable. Mother also contends termination of parental rights without obtaining supplemental information to evaluate the likelihood of long-term success of placement with the prospective adoptive parents constituted an abuse of discretion.

DISCUSSION

1. The children were adoptable.

Mother contends M.G. and J.G. suffer serious behavior problems and both appear to have an attachment disorder. Mother notes the boys were the subject of two prior failed placements. Maternal grandmother requested they be placed elsewhere after four months because of their difficult behavior. The boys then were placed in foster care where they remained for almost a year. However, they exhibited aggression, used profanity and fought with each other and peers. The boys were placed with their current prospective adoptive parents on March 2, 2008. The social report prepared for the permanency planning hearing was filed 22 days later. It provided little information about the status of the behavioral issues which led to the failure of the prior placement. Mother argues that because previous reports consistently revealed behavioral problems, the information provided did not establish the boys were likely to be adopted within a reasonable time by clear and convincing evidence. Mother notes that by the time the juvenile court conducted the permanency planning hearing on July 7, 2008, DCFS had submitted no additional reports or information about the children, even though they reportedly had commenced individual therapy in the interim.

Mother notes a report submitted in April of 2008 indicated M.G.s ability to appropriately attach to a caregiver might be significantly impaired which could result in more acting out behavior, leading to additional failed placements. The therapist concluded J.G. lacked internal resources needed to improve his behavior caused by lack of secure attachment to anyone except his brother. J.G.s therapist recommended a stable and secure placement. However such a placement previously had failed because of the severity of his acting out behaviors and his present inability to reciprocate affection.

Given these circumstances, mother asserts the likelihood M.G. and J.G. would be adopted remained questionable. Mother argues that, without a remarkable turnaround, there was no evidence the placement would succeed in the long term. Mother notes that when the children were removed from maternal grandmothers care and returned to foster care, DCFS similarly reported they appeared happy and bonded with their foster caretakers. However, their behavior deteriorated to the point the placement failed.

Mother also argues the boys therapeutic process was abruptly halted when they were moved to the prospective adoptive family and, based on remarks made by the childrens counsel, therapy was not resumed until sometime in early July 2008. Mother notes the prospective adoptive parents refused to transport M.G. for a final session to permit proper closure with his therapist. Although the children again were in counseling at the time of the selection and implementation hearing, there was no evidence to suggest their behavior had stabilized enough to eliminate the risk of another failed placement. Mother argues there is less evidence in support of the adoptability finding in this case than there was in In re Y.R. (2007) 152 Cal.App.4th 99. There, the child exhibited no behavioral problems after she was moved to a new placement and the evidence showed she largely had put her behavioral problems behind her and she improved dramatically at school. (Id. at p. 113.) Here, except for the preliminary assessment of the prospective adoptive parents, the juvenile court had no evidence as to (1) their ability to manage the childrens behavior, (2) whether there were services in place to insure a successful placement, or (3) the current status and behavior of the children. The cursory information provided in the report of March 25, 2008, which indicates the children were doing well emotionally did not furnish clear and convincing evidence they were likely to be adopted within a reasonable time.

Mother argues the only factor indicating the children were likely to be adopted was the placement of the children in a prospective adoptive home. Mother claims the record is devoid of information establishing the children were generally adoptable (In re Helen W. (2007) 150 Cal.App.4th 71, 79) and there was no showing the prospective adoptive parents were able to meet the needs of the children in light of their special needs and long history of placement challenges (In re Amelia S. (1991) 229 Cal.App.3d 1060, 1064-1065). Mother concludes the order terminating parental rights should be reversed and the matter remanded for further proceedings.

Substantial evidence supports the juvenile courts finding the children were adoptable.

The issue of adoptability posed in a section 366.26 hearing focuses on the [child], e.g., whether the [childs] age, physical condition, and emotional state make it difficult to find a person willing to adopt the [child]. [Citations.] Hence, it is not necessary that the [child] already be in a potential adoptive home or that there be a proposed adoptive parent waiting in the wings. [Citations.] (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) Usually, the fact that a prospective adoptive parent has expressed interest in adopting the [child] is evidence that the [childs] age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the [child]. In other words, a prospective adoptive parents willingness to adopt generally indicates the [child] is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family. (Id. at pp. 1649-1650.)

Here, the prospective adoptive parents were eager to adopt all three children. This constituted evidence the children were likely to be adopted within a reasonable time either by the prospective adoptive parents or by some other family. (In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650; In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) Certainty of a childs future condition is not required in order for the juvenile court to declare a child adoptable. (In re Helen W., supra, 150 Cal.App.4th at p. 79.)

Additionally, contrary to mothers arguments, DCFS did not recommend adoption based only on the availability of a specific prospective adoptive parent. (In re Sarah M., supra, 22 Cal.App.4th at p. 1650.) Here, the children generally were adoptable. DCFS reported in October of 2007 that, Based on the age of the children and focusing on the fact that both M.G. and J.G. are two healthy young boys, the []current plan for the children will be adoption. In addition, given the fact that these boys along with their younger sister . . . have [been] in placement together since the date of their detention, and the children appear to have a strong sibling bond and attachment, DCFS recommends that the children be adopted as a sibling group and not be separated. Placement with prospective adoptive parents achieved this long-term case goal.

Further, although M.G. and J.G. experienced emotional issues stemming from their neglect and abuse, they improved with regular therapy and stable placement. Also, it appears the difficulty in their behavior was caused by unmonitored contact with maternal relatives. The children improved dramatically when they were removed from that environment and they appear to be flourishing in the care of the prospective adoptive parents. In any event, a childs emotional or mental issues do not automatically preclude the likelihood of adoption. (See, e.g., In re Lukas B., supra, 79 Cal.App.4th at p. 1154; In re Jennilee T. (1992) 3 Cal.App.4th 212, 224-225.) In sum, the evidence demonstrated the children were likely to be adopted within a reasonable time.

2. Failure to obtain supplemental information.

Mother contends the juvenile court abused its discretion by proceeding without obtaining supplemental information about the children and their prospective adoptive parents to evaluate the likelihood the placement would succeed on a long-term basis. Mother relies on the same allegations set forth in support of her first argument and notes that, because the children were a sibling group, failure of the placement for any one of the children would have been fatal to the entire placement.

After the children were introduced to the prospective adoptive parents, DCFS filed two reports. One report addressed the placement and the other report addressed whether the children should be placed with maternal aunt. Each report indicated the prospective adoptive parents were well-suited and qualified to care for the children. Neither report indicated any problem in the placement. In fact, in the second report, DCFS recommended the children remain in the care of the prospective adoptive parents rather than being placed with maternal aunt. The recommendation of prospective adoptive parents over a family member demonstrated DCFSs belief that placement with prospective adoptive parents had excellent prospects for long-term success. The juvenile court received these reports into evidence and thereafter found the children were likely to be adopted within a reasonable time. The juvenile court committed no error in failing to obtain further information regarding the suitability of the placement or the prospective adoptive parents.

DISPOSITION

The order terminating parental rights is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

CROSKEY, J.

KITCHING, J.

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