In re M.G.
Filed 2/27/13 In re M.G. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re M.G. et al.,
Persons Coming Under the Juvenile Court Law.
SAN
BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
U.G., Sr.,
Defendant and Appellant.
E057101
(Super.Ct.Nos. J233562, J233563)
OPINION
APPEAL
from the Superior Court of
Bernardino County.
Gregory S. Tavill, Judge.
Affirmed.
Roni
Keller, under appointment by the Court of Appeal, for Defendant and Appellant.
Jean-Rene
Basle, County Counsel, Kristina M. Robb, Deputy County Counsel,
for Plaintiff and Respondent.
Defendant
and Respondent, U.G., Sr. (Father), appeals after the termination of his
parental rights to minors U.G., Jr., and M.G. at a Welfare and Institutions
Code section 366.26
name="_ftnref1" title="">[1] hearing.
Father
claims in this appeal that clear and
convincing evidence did not support the juvenile court’s finding that the
children were adoptable.
name="_ftnref2" title="">[2]
We
find no error.
I
PROCEDURAL AND
FACTUAL BACKGROUND
A. First
Detention
On
June 18, 2010,
4-year-old U. and 2-year-old M. were taken into protective custody by the
and Family Services (the Department). On that day, San Bernardino County Sheriff’s
Deputy Williams responded to the residence of Mother and Father on reports that
the children were dirty and playing outside unsupervised. When Deputy Williams arrived, he found that
the house had no running water and the toilet was filled with feces. Further, there were dirty dishes, spoiled
food and clothing strewn throughout the residence. Father and Mother both appeared to be under
the influence of drugs and admitted to using drugs within the previous 24 hours. Baggies that appeared to contain
methamphetamine residue were found in the house. Mother and Father were arrested on child
endangerment charges. The children
appeared dirty but not hungry.
Mother
was interviewed at the jail. She
admitted regularly using methamphetamine and marijuana but claimed she took
care of her children. She had been using
drugs since she was 14 years old and had never received any treatment. Mother claimed the water had been turned off
by the landlord in order to get her to move out. Mother and Father were not married.
Father
was also interviewed. He did not live
with Mother and the children. He claimed
that, since he did not live at the location, he knew nothing about the baggies
with methamphetamine. He denied he had a
drug problem; he used medicinal marijuana for an injury. He used a “little†methamphetamine.
The
maternal grandmother and paternal grandfather expressed an interest in caring
for the children, but due to other adults living in their residences who could
not pass the criminal background check, they could not take custody of the
children.
On
June 22, 2010,
the Department filed section 300 petitions against Mother and Father for the
children, alleging a failure to protect (§ 300, subd. (b)) due to substance
abuse and Mother keeping the home in deplorable condition; and it was alleged
against Father and Mother that they could not provide support (§ 300, subd.
(g)) due to their incarceration.
The
juvenile court found a prima facie case and ordered that the children be
detained and remain in the custody of the Department.
B. First
Jurisdiction/Disposition Report and
Hearing
In
a jurisdiction/disposition report filed on July 13, 2010, the Department recommended that
reunification services be granted to Mother and Father. Father admitted he was the biological father,
and the Department recommended that he be named the presumed father.
Mother
was interviewed on July 7, 2010. She
admitted the allegations in the petition.
She and Father were getting “high†when Deputy Williams arrived at their
home. Mother understood what she did was
endangering her children. Father denied
that they were smoking methamphetamine when Deputy Williams arrived but
admitted he was smoking the previous night.
Mother
had another child, six-year-old G.T., who was under a guardianship with his
paternal grandmother in Riverside County.
G.T.’s father was incarcerated, and Mother had met him while doing drugs
on the street. Mother did not complete
high school and had no known work history.
Both
Mother and Father wanted to receive drug treatment. Mother had a prior conviction for grand theft
of personal property in 2007. She was
currently charged with cruelty to a child and being under the influence of a
controlled substance, for her actions at the time of the children’s
detention. Father had a prior conviction
for battery on a spouse or cohabitant in 2005.
Father
was born in Cuba and had immigrated to the United States when he was six years old. His father was a political prisoner from Cuba.
Father could not return to Cuba because of his father. Father would likely be kept in custody on an
immigration hold. Father was close with
his family. He recognized that he was a
disappointment to his parents. He had
been involved in a gang until his brother was killed by a gang.
M.
appeared to be developing normally. She
was a happy girl. She showed no signs of
distress and had adjusted well to her foster care. U. also appeared to have no known medical or
dental concerns. He played well with
M. He showed no signs of distress.
The
maternal grandmother could not take the children because her husband had a
criminal history, her home was too small, and she expected to be working full
time. A paternal aunt was being evaluated
for placement.
The
jurisdictional/dispositional hearing was called on August 11, 2010.
Father waived his right to a hearing so that he would not have to make a
further appearance. The section 300,
subdivision (g) allegation was amended to strike the language that Father was
arrested for child endangerment. The
matter was continued.
At
a second hearing conducted on September 21, 2010, Father was not present as he was enrolled
in a drug rehabilitation program. Mother was present. The paternal grandparents and maternal
grandmother were also present. Mother
waived her rights to a hearing. Mother
was attending an inpatient drug treatment
program. Father was named the
presumed father.
The
juvenile court found the section 300, subdivision (b) allegations against
Mother and Father true. The Court also
found the section 300, subdivision (g) allegation true against Father but
struck the allegation against Mother.
Mother was scheduled to complete her inpatient program and was moving
into a sober living facility. Father and
Mother were granted reunification services.
C. Six-month
Review Report and Hearing
According
to a status review report filed on March 9, 2011, the Department was recommending that the
children be returned to Mother’s custody under a family maintenance program and
that reunification services be continued for Father. Mother was living in a sober living facility. She regularly visited with the children. Mother had been sober for 122 days. Mother would move to a sober living facility
that allowed children if they were returned to her. Maternal grandmother was helping Mother. Mother had no contact with Father and was not
planning to resume their relationship.
Father
had remained incarcerated during the reporting period on an immigration hold;
he had not reported that he had completed any of his case plan and had sent no
letters to the children. On February
16, 2011, Father was
released to border patrol agents, and his whereabouts were unknown.
M.
was developing normally and was healthy.
She had no behavioral problems and played well with other children in
the foster home. U. had no developmental
delays or health problems. He was reported
by the foster parents to be a sweet and affectionate boy.
Mother
had participated in all of her services and drug treatment. The children were staying with Mother every
other weekend and visiting for several hours during the week. The visits were going well. The children wanted to return to live with
Mother.
At
the hearing on March 21, 2011, both Mother and Father were present. The juvenile court adopted the recommendation
of the Department placing the children back in the custody of Mother with
family maintenance (contingent upon her remaining in sober living) and
continued reunification services for Father.
D. Supplemental
Petition Pursuant to Section 387
On
May 6, 2011,
a supplemental petition was filed
pursuant to section 387. On March
21, 2011, the
children were returned to Mother’s custody.
On May 2, 2011, Mother had been on a weekend pass outside
the sober living home. When she
returned, she was under the influence of methamphetamine. It was discovered that Mother had also used
methamphetamine on a prior occasion. She
used her money to buy the drugs while other residents of the sober living
facility bought groceries for the children.
Mother had used the drugs in the presence of the children. Mother would not be approved for sober living
with her children. Father’s whereabouts
were unknown.
A
detention hearing was conducted on May 9, 2011.
Mother was present in court; Father was not. Mother and Father’s counsel admitted the
allegations in the supplemental petition.
Mother was intending to reenter an inpatient treatment program.
Mother
requested that the maternal grandmother be considered for placement. The juvenile court found that a prima facie
case was established for out-of-home detention.
It approved of relative assessment for placement of the children.
E. Second
Jurisdiction/Disposition Report and Hearing
On
May 25, 2011,
the Department filed a second jurisdiction/disposition report. The children were placed in a different
foster home than the one they were placed before their return to Mother.
Mother
was living with the maternal grandmother and was unemployed. She had continuing visitation with her other
son, G.T., who was living with his paternal grandparents. G.T. had a relationship with his
siblings. Father’s probation officer
stated that Father had been deported on February 16, 2011. He
was on formal probation until 2013. It
was discovered that he also had prior convictions in 2005 and 2008 for
possession of marijuana and in 2009 for carrying a dirk or dagger, in addition
to the spousal abuse in 2008.
Both
children were developing normally and were healthy. Although the maternal grandmother was
assessed for placement, she declined placement.
She was unable to care for the children.
Further, Mother was living with her.
Father had made no visits with the children. Mother’s one visit during the reporting
period was appropriate.
Mother
did not voluntarily consent to adoption planning. She was advised that if reunification failed
adoption would be recommended.
The
second jurisdictional/dispositional hearing was held on June 30,
2011. Mother and Father (despite being deported)
were present. The juvenile court found
the allegation in the section 387 petition true after Mother admitted the
allegation. Mother and Father were given
continued reunification services.
F. 18-month
Status Review Report and Hearing
On
December 6, 2011, the Department filed a status review report pursuant to section 366.22. The Department had been unable to contact
Father, he made no visitation with the children, and he completed no
services. Mother had completed an
outpatient substance abuse program.
Approximately three months after the last hearing, Mother had moved in
with a man she had met in a substance abuse facility. Mother did not contact the Department for
some time and did not give adequate information, once she was contacted,
regarding her boyfriend. The boyfriend
was arrested in October 2011 because he had “pills†in the apartment, which
violated his parole, and Mother was present when he was arrested. She hoped to take over the apartment, which
was in the boyfriend’s name. The apartment
contained no furniture except for one mattress on the floor. Mother admitted that her living situation was
detrimental to her receiving custody of her children. She had tested negative for drugs on several
occasions.
Visitation
between Mother and the children was deteriorating. U. frequently did not want to attend the
visits and wanted to leave early. Mother
would allow the children to leave after just 15 to 20 minutes of
visitation. Further, since Mother had
moved in with her boyfriend, she had changed.
U.
had started kindergarten and was behind academically but was making progress
with the assistance of the foster mother and the teacher. There was concern that U. was suffering from
developmental delays, but they seemed to only be academic. The children had bonded with the foster
mother and adjusted well to their new home.
M. was developmentally and physically on target for her age. U. had panicked when the foster mother was
packing his bag for a trip, thinking he had to return to Mother’s care. Out-of-state placement with their paternal
great-aunt had not been approved.
The
Department recommended that reunification services be terminated. It recommended adoption by the current foster
mother.
On
January 24, 2012, additional information was submitted to the juvenile court. Mother had lost her job and was being
evicted. As of January
31, 2012, she would
have no place to live. She was
continuing her relationship with her boyfriend, who was out of jail. She acknowledged she would not be getting
back custody of her children.
A
contested review hearing was conducted on January 26, 2012.
Father was not present; Mother was.
They objected to termination of reunification services but presented no
evidence. Reunification services for
Mother and Father were terminated, and a section 366.26 hearing was set.
G. Section
366.26 Report and Hearing
The
section 366.26 report was filed on May 7, 2012. The
recommendation by the Department was termination of parental rights and
adoption. At the time of the report, U.
was five years old and M. was four years old.
The children had been in their current placement since May 4,
2011.
M.
was reported as a happy and outgoing child.
She was developing normally, loved to go to the mall, and play with her
dolls. U. was reported to be “a littleâ€
behind developmentally. U. was described
as “very lazy.†He would lie on occasion
to get out of trouble. He was a great
sharer. His teacher reported that U. was
immature, and his fine motor skills were lacking. He had problems socially. He was being assessed to repeat kindergarten. U. also was having behavioral problems in
class, but the teacher and foster mother were working on them. The children called the foster parents mommy
and daddy. They were both on target
emotionally. U. felt betrayed by Mother,
who had promised when they were returned to her that they would never have to
leave her again. Mother had only showed
up for one of the last five visits.
The
current foster family was not interested in adopting the children, so a home
was being sought for both of them. At
the time of the report there was no identified adoptive family. The children would be adopted as a sibling
set. The Department indicated it had
assessed all possible relatives for placement, and none had been approved. The social worker who prepared the report
stated that the children “are very much adoptable. Considering the instability in their lives
they are amazingly resilient.â€
At
a hearing on May 24, 2012, the Department sought a continuance in
order to find an adoptive family for the children. At the hearing the paternal grandfather asked
that the children be placed with his brother and his wife; the paternal
grandfather and his wife would also help to care for them. The Department stated for the record that the
paternal grandfather had previously given the names of several persons who
could care for the children, but they could not be approved for placement. This was the first time that the paternal
grandfather had mentioned his brother for potential placement. The paternal grandfather objected that the
names previously given to the Department had been rejected. He offered that the Department could
investigate him and his wife. The
juvenile court approved that a new home be found for the children.
On
July 19, 2012, it was reported that a nonrelative adoptive home was found for
the children. They had been placed with
the adoptive parents for two weeks and were making a good adjustment to the
home.
The
contested section 366.26 hearing was conducted on August 28, 2012, as will be
discussed in more detail, post. Mother and Father were present. The trial court terminated parental rights,
freeing the children for adoption. The
juvenile court found there was clear and
convincing evidence that the children would likely be adopted.
Father
filed an appeal from the section 366.26 hearing.
II
PERMANENT PLAN
OF ADOPTION
Father
contends that the juvenile court erred by finding by clear and convincing
evidence at the section 366.26 hearing that the children were adoptable.
A. Additional
Factual Background
his parental rights and freeing the children for adoption. He indicated he had not participated in his
case plan or visitation because he had been incarcerated throughout the
dependency proceedings. He requested
that a legal guardianship be considered.
He wanted an opportunity to parent the children at some point. Mother claimed that she had a bond with the
children and objected to the termination of her parental rights.
The
juvenile court stated, “When there is clear and convincing evidence that the
children will be adopted, the Court is required to take that course, unless one
of the exceptions is shown. [¶] There are no exceptions in this case. The Court will follow the [Department’s]
recommendations.†The juvenile court
found there was clear and convincing evidence the children would be adopted,
and terminated the parental rights of Mother and Father.
B. Analysis
At
the section 366.26 hearing, the juvenile court, after terminating reunification
services, “determines whether the child is adoptable on the basis of clear and
convincing evidence. [Citations.]†(In re
Josue G. (2003) 106 Cal.App.4th 725, 732; § 366.26, subd. (c).) “Adoption, where possible, is the permanent
plan preferred by the Legislature.
[Citation.]†(
567, 573.) The focus of the court’s
inquiry is on the child, “and whether the child’s age, physical condition, and
emotional state may make it difficult to find an adoptive family. [Citations.]â€
(In re Erik P. (2002) 104
Cal.App.4th 395, 400; see also In re
Sarah M. (1994) 22 Cal.App.4th 1642, 1649.)
A proposed adoptive parent need not be identified and ready to adopt,
but “there must be convincing evidence of the likelihood that adoption will
take place within a reasonable time.
[Citation.]†(
616, 624.)
The
clear and convincing evidence standard is a low threshold. “The court must merely determine that it is
‘likely’ that the child will be adopted within a reasonable time. [Citations.]â€
(In re K.B. (2009) 173
Cal.App.4th 1275, 1292.) “We review that
finding only to determine whether there is evidence, contested or uncontested,
from which a reasonable court could reach that conclusion. It is irrelevant that there may be evidence
which would support a contrary conclusion.†(Ibid.) In other words, on appeal, “the clear and
convincing test disappears and ‘the usual rule of conflicting evidence is
applied, giving full effect to the respondent’s evidence, however slight, and
disregarding the appellant’s evidence, however strong.’ [Citation.]â€
(In re I.W. (2009) 180 Cal.App.4th
1517, 1526.) We presume in favor of the
order considering the evidence in light most favorable to the prevailing
party. (Id. at p. 1525.)
We
find there is substantial evidence, supported by the record, that the children
were properly deemed adoptable by the juvenile court. Here, adoptive foster parents for the
children were found two months prior to the section 366.26 hearing. It was reported that the children were adjusting
well to their adoptive home. Although a
finding of adoptability does not require a showing that a particular person
wants to adopt the child, the existence of prospective adoptive parents serves
as “evidence that the child’s age, physical condition, mental state, and other
relevant factors are not likely to dissuade individuals from adopting the
child.†(In re A.A. (2008) 167 Cal.App.4th 1292, 1311-1312.) The fact that there was an adoptive family
ready to take custody of the children was strong evidence that they were likely
to be adopted.
Even
if the adoptive family chose not to take the children, there was evidence that
they were adoptable. At the time of the
section 366.26 hearing, U. was five years old and M. was four years old. M. was described throughout the Department’s
reports as a happy and outgoing child. She
was developing normally and had no delays.
She certainly had no physical or mental condition that would dissuade
anyone from adopting her.
In
the beginning of the process, U. had no reported developmental delays and was
adjusting well to his situation. He was
reported as a sweet and affectionate boy.
Toward the end of the process, U. started to show some impact from his
circumstances. He no longer wanted to
attend visits with his mother and felt abandoned by her. He had started kindergarten, and it was
discovered he had some academic delays.
U. was having some behavioral problems in class, but they were being
addressed. He also was described as a
great sharer.
Understandably,
considering the circumstances, U. had some academic and behavioral problems
based on his situation. However, these
did not rise to the level that no one would adopt him. In In
re Helen W. (2007) 150 Cal.App.4th 71, 75, 79-80, a foster mother’s
willingness to adopt a sister and brother was sufficient to support the juvenile
court’s finding of adoptability, although the sister suffered from various
physical and development conditions including autism and bipolar disorder and
exhibited violent behavior. Here, U. was
a sweet and affectionate boy who got along well with M., and M. was reported as
a happy girl. Nothing in the record
indicates that a family would not be willing to adopt the children.
Finally,
the Department described the children as “very much adoptable†and “amazingly
resilient.†Both of the children had been
able to handle the changes that occurred in their lives after being detained
from Mother and Father, returned to Mother, and then detained again. They also endured different foster homes. Despite these changes, they remained happy
children who had no serious developmental delays.
In
his opening brief, Father stated that the children were not in a prospective
adoptive home. He insisted they were
still in the foster home where the parents did not want to adopt them,
surmising it was based on U.’s emerging behavioral problems. In his reply brief, Father recognized that
the children were placed in a prospective adoptive home but complained that
there was no information regarding the success of that home or the progress of
the adoption. However, specific adoptive
parents are not required in order to find a child adoptable. (In re
A.A., supra, 167 Cal.App.4th at pp. 1311-1312.)
The fact that there was a family who was interested in adopting the
children was evidence that they were likely to be adopted.
Father
also states that U. had “serious and broad spectrum problems.†However, the record does not support that U.
was suffering from major behavioral problems.
U. was behind academically, but his problems were being addressed by the
school. Further, although he was
exhibiting behavioral problems in class, they were never reported as serious
problems. He was not listening, was
writing on property, and had trouble with his homework, but he was not expelled
from the classroom. He was reported to
love school, and he was working with the teacher and foster mother to improve
his behavior. Nothing in his behavior
showed by clear and convincing evidence
that he was not adoptable.
Based
on the foregoing, there was substantial evidence presented that the children
were likely to be adopted within a reasonable time.
III
DISPOSITION
The
order appealed from is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
Acting
P. J.
We concur:
KING
J.
MILLER
J.
name="_ftn1" title=""> [1] All
further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
of her parental rights.
