In re Rita Q.

Filed 11/20/07 In re Rita Q. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

In this juvenile dependency proceeding, the father of a dependent child appeals the juvenile court order terminating his parental rights. He challenges the courts determination that the child is likely to be adopted. We find substantial evidence to support the challenged finding, and we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The child whose interests concern us here is Rita Q.[1] She was born in September 2000. Ritas birth parents are Theresa A. (the mother) and appellant David R. (the father).

Detention in Protective Custody

Rita was placed in protective custody on September 23, 2003, along with two siblings. Shortly thereafter, a petition was filed on her behalf by the Santa Clara County Department of Family and Childrens Services (the Department). The petition sought dependency jurisdiction over Rita, under the provisions of Welfare and Institutions Code section 300.[2] The petition alleged that there was a substantial risk that Rita would suffer serious harm as a result of her mothers inability to provide care for her, due to mental illness and substance abuse. ( 300, subd. (b) [failure to protect].) The petition further alleged that the child was at risk of serious harm because of the mothers abuse or neglect of Ritas siblings. (Id., subd. (j) [sibling abuse].) The Department filed amended petitions thereafter, which contained similar allegations.

Jurisdiction

The Department prepared a jurisdiction report, dated October 2003, which was filed at the jurisdiction hearing in November 2003. The Department asked the court to take jurisdiction over Rita, who had been placed in an emergency satellite foster home.

Concerning the mother, the report described her long history with child welfare authorities, including 26 prior referrals for abuse or neglect, involving nine of her children. The report also summarized the mothers criminal history, which dates back to 1984, when she was a minor. The report described the mothers longstanding substance abuse and mental health problems. The social worker who authored the report questioned the mothers ability to follow through with services. The Department anticipated seeking a bypass of reunification services to the mother.

Regarding the father, the Departments jurisdiction report noted his single criminal conviction, suffered in 1983, for driving under the influence. The report advised the court that the father was cooperative and has agreed to seek counseling, find employment and find appropriate housing. The Department anticipated recommending reunification services for the father.

Following a hearing in November 2003, the court determined that Rita was a child described in section 300. A pretrial conference and a contested disposition hearing were scheduled for early 2004.

Disposition

The Department prepared a disposition report, dated November 2003, which was filed at the disposition hearing in March 2004. Rita was still at the emergency foster home. Concerning reunification services, the report recommended bypassing services to the mother but providing them to the father. The report summarized the fathers social history. The report also summarized Ritas medical and developmental history, and it described her problematic behaviors at her foster home and during visits.

A contested dispositional hearing was held in March 2004. Rita was adjudged a dependent child. The father was given reunification services and a visitation schedule. The court set review hearings.

Interim Review and Other Hearings

In April 2004, a case plan review hearing was held. In a report for that hearing, the Department described the father as making a sincere and sufficient effort to comply with his case plan. But the report observed that he continues in his enmeshed relationship with the mother of his child, which may impact his ability to become self-sufficient.

At a hearing held on July 2, 2004, the court approved an out of county placement for Rita, over the fathers objections. Rita was placed with the mothers first cousin, Patricia Q., and her husband, G. Q., who reside in Ventura County, California.

In September 2004, after several continuances, the six month review hearing was held. In an addendum report prepared for that hearing, the Department advised that Rita had been diagnosed with developmental delays and hyperactivity, and it sought the courts approval for prescribed medication. The report also included the social workers assessment that visits were becoming disruptive to the childs placement and that it is questionable if they are in her best interest, overall. The social worker expressed concerns about the father, including his apparent difficulty with accepting the fact that [Rita] is placed in a pre-adoptive home and his failure to verify his ability to secure a permanent residence or employment. In orders entered following the hearing, the father continued to receive reunification services as well as twice-monthly visitation.

In November 2004, the juvenile court conducted the twelve month review hearing. In a status review report prepared for that hearing, the Department advised the court of problems with Ritas placement. Ritas caretaker had concluded that she was unable to provide the child with the extensive care that she needs and had asked the Department to remove the child as soon as possible. However, the caretaker had agreed to care for [Rita] until another placement is secured. Another relative a paternal aunt had then come forward to express an interest in caring for Rita. The aunt was highly motivated and had expressed awareness of the challenges and responsibility that will come with caring for Rita. But in the social workers opinion, the paternal aunts optimism, unfortunately, is nave and steeped in emotional blindness over what will be required to meet [Ritas] high level of needs. He was concerned about Ritas extremely high risk to suffer significant emotional damage if another caregiver fails to meet her needs. A team decision-making session was planned to discuss Ritas placement. In the social workers view, it is likely that the caregiver will need intensive in home support or that [Rita] will require residential treatment prior to her placement to help her have a better chance at success. Apart from these placement issues, visitation was also problematic, since Rita continued to regress after visits. Following the review hearing, the court terminated reunification services. It also reduced the fathers visitation to once a month.

In December 2004, the Department applied for an order permitting Rita to visit her paternal aunt and uncle in Arizona, who had been identified as a possible adoptive placement for the child. The record does not indicate whether the requested visit took place.

In June 2005, the court conducted a status review hearing. In a report prepared for that hearing, the Department recommended a plan of legal guardianship for Rita, with the maternal relatives (Mr. and Mrs. Q.) as her guardians. As the report explained, they were initially uncertain about going through with a plan of adoption because [Rita] had so many different needs when she was placed in [July] 2004. Since that time, the caregivers have been diligent in following through in getting [all the] services and support they could on behalf of [Rita]. The caregivers incorrectly believed they were required to decide on a plan of adoption in order to keep [Rita] with them, and this led to some initial pre-placement activities with an alternative relative ([the fathers] sister and her spouse) in Arizona. The paternal relatives were not approved for placement, and the present maternal relative caregivers were able to connect [Rita] with the services she needs in Ventura County. The present caregivers are very excited to learn that they can pursue Legal Guardianship and the social worker is recommending that guardianship be approved.

At the hearing in June 2005, the court adopted the Departments corrected recommendations, ordering permanent placement with a fit and willing relative. The court continued to allow the father to visit Rita once a month. The court also set a permanency planning hearing for September 2005. Two other September hearings were later scheduled: one to review visitation and the other to consider the childs application for a name change.

In a report dated August 2005, the Department expressed support for the childs name change petition. It also reported continued concerns about the childs extreme emotional reactions after visits with her birth parents. Following the September 2005 hearing, the court reduced visitation for October to one-half hour.

In October 2005, as requested by the Department, the court terminated visitation altogether, finding it detrimental to the child. The court also granted the childs petition for a name change.

Permanency Hearings

At the September 2005 hearing, in addition to the other matters before it, the court also considered permanency planning for the child. (See 366.26 [selection and implementation of permanent plan].) The Department recommended a permanent plan of legal guardianship for Rita with Mr. and Mrs. Q. Its report states: Due to the childs special needs and level of support services involved, the likelihood of adoption is lessened. Since [Ritas] initial placement, the current caregivers have stated their interest in adoption, though [they] were concerned about [the] childs level of functioning and assurance that appropriate supportive services would be available. The proposed guardians chose to pursue legal guardianship of [Rita] as a way of establishing permanency in her life, although they have not ruled out their interest in adoption, and may still pursue adoption once the guardianship is granted. The court ordered legal guardianship as Ritas permanent plan.

In March 2006, the court held a post-permanency review hearing. (See  366.3.) In a report for that hearing, the Department recommended no changes to the childs permanent plan. According to the report, Ritas Legal Guardians are caring for and parenting her as their own child. They are committed to her long-term well being. The court continued Rita in her guardians care.

By May 2006, Ritas guardians had decided that they wanted to adopt her. The Department supported that decision. In its September 2006 review report, the Department thus recommended changing Ritas permanent plan to one of adoption. At hearing held on September 27, 2006, the court scheduled a selection and implementation (permanency planning) hearing for the following January.

In January 2007, the court was informed that the mother had received late notice, and it continued the hearing to March 2007. In March, the father requested a trial, and the matter was again continued, this time to April. The Department continued to recommend adoption as the new permanent plan for Rita. It asked the court to terminate the parental rights of both the mother and the father and to place the child Rita Q[.] for adoption.

In April 2007, the court conducted the permanency planning hearing as a contested matter. The father and the social worker both testified. At the conclusion of the hearing, the juvenile court ruled from the bench, finding that Rita was likely to be adopted. The court terminated parental rights as to both the mother and the father, and it ordered services for adoption planning.

Appeal

This timely appeal by the father ensued. He challenges the juvenile courts adoptability finding, arguing that it is not supported by substantial evidence.

The Department defends the juvenile courts determination, as does Rita.

DISCUSSION

As a framework for our analysis, we begin with a brief overview of the principles of dependency law that inform our decision. Against that backdrop, we analyze the specific contentions raised here.

I. Legal Principles

A. Statutory Framework

The Legislature has provided for juvenile court jurisdiction over dependent children. (See 300 et seq.) The primary goal of the dependency statutes is to ensure the safety, protection, and well-being of children who are at risk of abuse, neglect, or exploitation, while preserving the family whenever possible. (In re David M. (2005) 134 Cal.App.4th 822, 824; see 300.2; In re Marilyn H. (1993) 5 Cal.4th 295, 307.) In dependency proceedings involving the removal of children from their parents, there are generally four phases: jurisdiction, disposition, reunification (unless bypassed), and the selection and implementation of a permanent plan. (In re Matthew C. (1993) 6 Cal.4th 386, 391.) We are concerned with the fourth and final phase here.

B. Permanency Planning

At the appropriate juncture, the juvenile court is required to select and implement a permanent plan for a dependent child. ( 366.26; In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164.) The selection and implementation hearing under section 366.26 takes place after the juvenile court finds that the parents are unfit and the child cannot be returned to them. (In re Josue G. (2003) 106 Cal.App.4th 725, 732.) Generally speaking, the court is required to select one of three plans for the child: adoption, guardianship or long-term foster care. (In re Jose V. (1996) 50 Cal.App.4th 1792, 1797.)

Where there is no probability of reunification with a parent, adoption is the preferred permanent plan. (In re Tabatha G., supra, 45 Cal.App.4th at p. 1164; see In re J.I. (2003) 108 Cal.App.4th 903, 910-911.) Adoption is the preferred placement because it offers the prospect of a secure permanent home. (In re Jamie R. (2001) 90 Cal.App.4th 766, 774.)

Notwithstanding the strong preference for adoption, the juvenile court may not terminate parental rights and free the child for adoption except upon clear and convincing evidence that the child is likely to be adopted within a reasonable time. ( 366.26, subd. (c)(1); In re J.I., supra, 108 Cal.App.4th at p. 911.)  Clear and convincing evidence requires a finding of high probability. The evidence must be so clear as to leave no substantial doubt. (In re Asia L. (2003) 107 Cal.App.4th 498, 510.)

C. Appellate Review

As California Supreme Court precedent teaches, the juvenile courts placement determination for a dependent child typically is reviewed under the abuse of discretion standard. (In re Stephanie M. (1994)7 Cal.4th 295, 318-319.) But many courts have employed the substantial evidence review standard when the issue on appeal is the termination of parental rights, since the requisite case-by-case assessment of relevant circumstances generally compels a fact-based analysis. (See, e.g., In re Erik P. (2002) 104 Cal.App.4th 395, 400; In re Brittany C. (1999) 76 Cal.App.4th 847, 854; In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) The father proposes that review standard here. As a practical matter, the differences between the two standards of review are not significant. In its emphasis on deference, the abuse of discretion standard is similar to the substantial evidence rule. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1065.) Furthermore, evaluating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. (Id. at p. 1067.)

Applying that deferential review standard, we view the evidence in the light most favorable to the order. (In re Y.R. (2007) 152 Cal.App.4th 99, 112; In re Autumn H., supra, 27 Cal.App.4th at p. 576.) As this court has stated, where clear and convincing evidence is required, we review the record bearing in mind the heightened burden of proof. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) But we have also observed: The clear and convincing standard is for the edification and guidance of the juvenile court. It is not a standard for appellate review. (In re J.I., supra, 108 Cal.App.4th at p. 911.) We thus examine the record to decide only whether a reasonable trier of fact could find that termination of parental rights is appropriate based on clear and convincing evidence. (In re Jasmon O. (1994) 8 Cal.4th 398, 423, internal quotation marks omitted; accord, In re Erik P., supra, 104 Cal.App.4th at p. 400.) We give the courts finding of adoptability the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of affirming. (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1562.) The appellant has the burden of showing that the challenged finding or order lacks evidentiary support. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)

II. Analysis: Likelihood of Adoption

With those principles in mind, we turn to the case at hand. As noted above, the father contends that there is an insufficient basis for the juvenile courts finding that Rita is likely to be adopted. More specifically, he asserts, the courts finding that if for some reason that did not happen [adoption by prospective adoptive parents], the child is nevertheless likely to be adopted was not supported by substantial evidence. He cites Ritas special needs and the Departments failure to identify any other potential adoptive families. According to the father, before an adoptability finding is made, a broader spectrum of placements must be indicated. In his view, Ritas future is bleak should her current placement fail because she is subject to becoming a legal orphan.

A. Adoptability: Overview

Dependent children may be generally adoptable, because they possess desirable attributes, or they may be specifically adoptable, because a particular prospective adoptive family is willing to adopt them. (See In re Carl R. (2005) 128 Cal.App.4th 1051, 1061.) In general adoptability determinations, the focus is on the child; the juvenile court considers whether the childs age, physical condition, emotional state, or other factors may make adoption difficult. (In re Zeth S. (2003) 31 Cal.4th 396, 406; In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) In such cases, the existence of a prospective adoptive parent is not determinative in itself. (In re Sarah M., at p. 1649; see  366.26, subd. (c)(1); see also, e.g., In re Josue G., supra, 106 Cal.App.4th at p. 733.) But it is a factor in assessing adoptability, since a prospective adoptive parents interest is evidence that the childs attributes are not likely to discourage others from adopting that child. (In re Sarah M., at p. 1650; In re Erik P., supra, 104 Cal.App.4th at p. 400; cf., In re Asia L., supra, 107 Cal.App.4th at pp. 510-512.)

B. Factors

The relevant factors in assessing adoptability include the childs age, physical condition, and emotional state. (In re Sarah M., supra, 22 Cal.App.4th at p. 1649.) In assessing those factors, we are guided by the statutory provision that specifically governs the termination of parental rights, section 366.26. Under that provision, a dependent child may be considered difficult to place for adoption in certain enumerated circumstances, which included cases where the child has a diagnosed medical, physical, or mental handicap, or the child is the age of seven years or more. ( 366.26, subd. (c)(3); cf., 8545 [defining special needs child].) But such children are deemed difficult to place only if there is no available prospective adoptive parent. ( 366.26, subd. (c)(3).)

1. Age

As of April 25, 2007, the date of the section 366.26 hearing, Rita was about six years and eight months old. Thus, she was nearing but had not yet reached the age that could render her difficult to place for adoption under the statute, which refers to children aged seven years or more. ( 366.26, subd. (c)(3).)

2. Physical Health

Ritas physical health presents no impediment to her adoption. She had been diagnosed at a very young age with failure to thrive (etiology unknown) and microcephaly, and later with hyperactivity. But by January 2007, the child was reported to be in good health and improving in strength every day. Rita receives regular physical and dental exams. Rita continues to take psychotropic medication to manage her behaviors.

3. Developmental/Mental/Emotional Status

Problems with a dependent childs emotional and psychological development may present a potential obstacle to adoption. (In re Asia L., supra, 107 Cal.App.4th at p. 512.)

As the record demonstrates, Rita is developmentally delayed. She has a diagnosis of mild mental retardation. She also has a history of behavioral issues. But contrary to the fathers statement, she has never been diagnosed with reactive attachment disorder.[3] In an early assessment, dated October 1, 2004, Ritas therapist stated that she appears to have features of a reactive attachment disorder. (Italics added.) The therapist then continued: My suspicion is that most of her psychological problems will turn out to be due to mental retardation since language disorders, uncooperative and hyperactive behavior, and social difficulties are very common in retarded children and adults. In any event, the record belies an attachment disorder, given the evidence showing Ritas ability to form relationships. That evidence includes June 2005 correspondence from Patricia Q., stating: Rita is very much a member of our immediate and extended families. From the first time I met (Rita) she called me mommy. She referred to everyone as mommy or daddy. She could not distinguish the difference between people in her life. Today, she is able to separate the differences. She calls me mommy and my husband, daddy. She knows the difference now. We are, and will play that role in her life that she needs. In testimony at the April 2007 hearing, the social worker confirmed those observations. She characterized the relationship between Rita and her caregivers as a very close, loving parent-child relationship. As the social worker described it, Ritas prospective adoptive parents love her and she loves them in return. The social worker further testified that Rita was able to attach and have relationships.

Considering the foregoing evidence, and the record as a whole, it is clear that Rita has made great strides in overcoming her emotional, psychological, and behavioral problems. In 2004, the Department described Rita as having a delayed speech disorder and exhibiting very poor personal boundaries with strangers or people that she barely knows. The caretakers reported that the three-year-old child had a tendency to throw a temper tantrum[] when she [did] not get her way and her tantrums consist[ed] of biting herself or objects, uncontrollable screaming, and forcing herself to throw-up. In the July 2004 report that recommended placement with Patricia Q. and her husband, the social worker emphasized the childs need for a safe and secure home environment. [Rita] has had multiple caretakers for most of her young life and this experience has most likely caused her to suffer emotional damage. In the social workers opinion, there is still time for [Rita] to become stabilized in her placement and in her relationships so that she can fully benefit from the mental health treatment and other services that [she] needs to help her become successful. As this record demonstrates, the social worker was right: there was still time for Rita, who has made significant progress since 2004.

As early as September 2005, the Department was reporting that Rita has thrived and is receiving many services, as well as love and affection in order that she has the opportunity to grow into a healthy adult. A similar theme is reflected in a September 2005 letter written by Ritas therapist, who described clear and significant behavioral and emotional gains in her current circumstances. Ms. Q[.] notes improvements in [Ritas] eating, sleeping, language, behavioral control, social behavior, and attention span. In our play therapy sessions, I have noted similar improvements in language, organization of play, coherence of play themes, perseverance toward completion of activities, independence, and rule following. December 2005 correspondence from Patricia Q. to the father likewise reports progress by Rita: She is doing well in school. Her report card shows that she is progressing in her kindergarten class. She is well liked and is learning to get along with the other students. In a March 2006 report, the Department confirmed that Rita was making friends at school. Rita continues to benefit from the care and guidance provided by her guardians. In a November 2006 speech/language assessment, the examiner stated that in conferring with her teacher, Rita has made significant progress over the past three years. During the testing session, Rita was highly motivated and her performance and behavior during the tests exceeded expectations. In a December 2006 letter to the father, Patricia Q. reported on Ritas educational milestones, saying: This year she started 1st grade. She is improving very well. She knows how to write her letters and numbers. She can now count to 30 and is getting closer to counting to 50 with a little help. By January 2007, the Department reported, the caretakers could see how Rita has grown physically and emotionally as a result of their care, and with the help of professional services.

Beyond Ritas progress, there is evidence of the childs positive personal attributes. As early as June 2005, Patricia Q. described Rita as a delightful child who is eager to please whenever possible notwithstanding difficulties in her behaviors. More recently, the Department called Rita a very active, curious, and playful young child intelligent and sociable. The juvenile court understood that to mean intelligent, given the limitation that she has. And as Patricia Q. stated in her December 2006 letter to the father: She knows that she is a smart little girl and is very proud of herself when she accomplishes a task. In the same letter, Patricia Q. also described some of Ritas favorite activities, saying: She really loves going to the park and riding her bike and going super fast. Shes a very fast runner too. At the April 2007 hearing, the social worker opined that Rita is adoptable despite her special needs, saying: Shes a healthy child. Shes very cute, very active. Again, in general good health. [] Shes you know, shes able to attach and have relationships.

In sum, Rita appears to be a lovable and loving child, with good prospects for a successful and happy life in a stable home. This is not a case in which the child might be considered unadoptable due to age, poor physical health, physical disability, or emotional instability. (In re Sarah M., supra, 22 Cal.App.4th at 1650.) Although she is older, she is in good general physical health. As for her emotional, behavioral, and psychological challenges, she has made significant progress in overcoming these problems. Moreover, her developmental delays are being addressed with appropriate services and a loving, supportive home. Contrary to the fathers arguments, Rita appears fully capable of forming a loving bond and becoming part of a permanent family. Among the attributes that make children generally adoptable are intellectual and academic growth, and ability to develop interpersonal relationships. (Id. at p. 1651.) Those attributes are in evidence here.

The juvenile courts adoptability determination thus finds ample support in the record, even without considering the existence of an identified prospective family. The fact that Rita was in a concurrent home provides further evidentiary support for the finding of adoptability. (See In re J.I., supra, 108 Cal.App.4th at p. 911; cf., In re Asia L., supra, 107 Cal.App.4th at p. 510.)

In sum, on this record, a reasonable juvenile court judge could find clear and convincing evidence that Rita is likely to be adopted. Neither her developmental delays nor the absence of other prospective adoptive families diminishes the force of that determination. Under these circumstances, the court did not err in terminating the fathers parental rights.

Disposition

We affirm the order of April 25, 2007, terminating appellants parental rights and freeing Rita for adoption.

____________________________________________

McAdams, J.

WE CONCUR:

________________________________

Bamattre-Manoukian, Acting P.J.

________________________________

Duffy, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Property line Lawyers.

[1] The child had a different name at birth, but her name was legally changed to Rita Q. in October 2005. We refer to her here as Rita.

[2] Further unspecified statutory references are to the Welfare and Institutions Code.

[3] Reactive attachment disorder is a psychological condition that means an inability to form loving attachments. It entails difficulty bonding, poor impulse control, and insensitivity to the needs of others. (In re Jayson T. (2002) 97 Cal.App.4th 75, 82, disapproved on another point in In re Zeth S. (2003) 31 Cal. 4th 396, 413-414.) It is a relatively serious allegation: The child is at least at some risk of turning out to be a psychopath. Ironically enough, one factor that can lead to reactive attachment disorder is multiple placements. (In re Jayson T. at p. 82.)