In re Tyrone A.
Filed 6/28/12 In re Tyrone A. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 THREE
In re TYRONE A. et al., Persons Coming Under the Juvenile
Court Law.
ORANGE COUNTY SOCIAL SERVICES AGENCY,
Plaintiff and
Respondent,
v.
JOEL A. et al.,
Defendants and
Appellants.
G046013
(Super. Ct. Nos. DP013385
& DP013386)
O P I N I O N
Appeal from a judgment of the Superior Court of
County, Cheryl
L. Leininger, Judge. Affirmed.
Michael
D. Randall, under appointment by the Court of Appeal, for Defendant and
Appellant Joel A.
Leslie
A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant
Jennifer A.
Nicholas
S. Chrisos, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy
County Counsel, for Plaintiff and Respondent.
No
appearance for the Minors.
Jennifer
A. (Mother) and Joel A. (Father) appeal from a judgment terminating their
Tyrone and Cheyenne. They contend there is insufficient evidence
to support the juvenile court’s finding the children are adoptable, but we
disagree and affirm the judgment.
FACTS
Mother
and Father have a history of drug abuse,
criminal behavior and domestic violence.
They also have had extensive involvement with the Orange County Social
Services Agency (SSA) over the years. In
fact, they both have had children removed from their care during previous
relationships.
The
present case arose in May 2006, after father hit Tyrone, then age six, and Cheyenne,
then age three, with a belt. After
allegations of physical abuse, failure to protect, substance abuse, domestic
violence, and past abuse of siblings were sustained, the children were declared
dependents of the court and placed with their maternal grandmother. Mother was granted
visit the children, but father was denied services and subsequently imprisoned
for auto theft and assault.
During
the first 12 months of this case, Tyrone displayed aggressive and oppositional
behavior. He was diagnosed with
attention deficit hyperactivity disorder (ADHD) and bipolar disorder and was
found to have a learning disability which necessitated an
(IEP). Like Tyrone, Cheyenne
required an IEP, to treat her delayed speech and language problems; she could
be difficult and defiant at times. Both
children were physically healthy, but they also showed signs of developmental
delay in terms of maturity and cognition.
In
May 2007, the maternal grandmother moved to a new apartment with the children,
and Mother was allowed to join them there.
Throughout the year, the children actively participated in
made progress on their behavioral and educational issues. However, Tyrone often appeared depressed and
angry and had difficulty with his self-esteem.
He also struggled with his communication skills and was diagnosed with
oppositional defiant disorder (ODD). Cheyenne
made good progress in her speech therapy and was on track to attend regular
kindergarten, but she had trouble with her small motor coordination, which
hampered her writing.
In
mid-2007, Mother regained custody of the children and family maintenance
services were ordered. In addition,
Father was released from jail and granted weekly visitation. Over the next nine months, the children
developed at age-appropriate levels. Cheyenne
made strides in counseling and her speech continued to improve, but she was
increasingly defiant toward Mother.
Tyrone struggled with impulse control and anger management, yet was
generally well behaved at school and cooperative in counseling.
In
early 2008, Father’s visitation was increased from two to four hours per
week. Around the same time, Mother left
a voicemail for Father’s attorney in which she appeared to threaten to kill the
children. When police and social
services responded to her house, she was erratic and aggressive. The children were taken into protective
custody, and the court sustained a supplemental jurisdictional petition against
the parents. However, the children were
later returned to Mother’s care under a conditional release agreement, and
family maintenance services were resumed.
In
2009, Tyrone began showing signs of academic progress. He continued to receive counseling services
and remained developmentally on target.
During summer camp, he displayed few behavioral issues and was
recognized as a “star camper.” Cheyenne
was also doing better in school.
However, her increased oppositional behavior necessitated further
counseling. Father, meanwhile, was
jailed for battering Mother and possessing drugs and was not released until the
spring of 2010.
Around
the time Father was getting out of jail, Tyrone and Cheyenne,
then ages ten and seven respectively, were detained because of ongoing concerns
that Mother was using drugs and physically abusing them. After a brief stay in a foster care facility,
the children were placed in the foster home of Ruth Carter. In the wake of this placement, the case plan
was changed from family reunification to long-term foster care. However, Mother and Father were still allowed
to visit the children every other week.
While in
Carter’s care, Cheyenne was
diagnosed with ADHD and prescribed medication.
Although she struggled during the 2009-2010 school year, she made
improvements in reading, writing and arithmetic. She still displayed oppositional behavior at
times, but overall, she was doing very well in Carter’s care.
During
the course of the 2010-2011 school year, the children remained with
Carter. Tyrone’s school performance
improved and he generally appeared happier and less burdened. However, he was still rather moody and prone
to angry outbursts, especially after visitation sessions with his parents. His therapist reported, “Tyrone’s
irritability, depressed mood, and feelings of hopelessness result in arguing
with [Carter] about directions and rules, which hinder and interrupt [his]
daily activities.” To help alleviate
these issues, Tyrone attended a weekly social skills group and met with a
therapeutic behavioral services coach.
Cheyenne,
who had become obese, developed better eating habits in Carter’s home and lost
10 pounds. Her grades were still below
average, but her teachers reported she was trying very hard and making sound
improvements scholastically. She was
also less irritable and able to concentrate better, due to her ADHD
medication. Despite their behavioral and
educational problems, the children were reported to be “thriving” in Carter’s
care.
In
early 2011, Carter told SSA she wanted to adopt the children. On the heels of that announcement, SSA
changed the case plan from long-term foster care to adoption, and the court
scheduled a hearing to decide on a permanent placement plan for the
children. (Welf. & Inst. Code, § 366.26.) Tyrone’s behavioral problems persisted
in Carter’s care, though. One time, he
wrapped Carter’s dog in clothing and stuffed it into a drawer. And on another occasion, he was found alone near
the dog after it was heard yelping and found bleeding from its anus. He also told his social worker that he heard
voices telling him to do bad things.
In
light of these developments, Tyrone’s adoption prospects were downgraded
slightly. However, his court-appointed
special advocate (CASA), Kathie Colbert, expressed interest in adopting
him. Colbert had worked with Tyrone
extensively throughout the case and was very familiar with his background and
his psychological and behavioral issues.
In June 2011, she resigned as his CASA so she could take him in, and the
following month, he was placed in her care.
Tyrone’s therapist recommended that he undergo psychological testing,
but due to a backlog, he was put on a waiting list.
Meanwhile,
Cheyenne remained in Carter’s
home. Although school continued to pose
challenges for her, her teacher reported it had “been a pleasure watching [her]
transform into a motivated and determined student.” During the summer of 2011, she attended
several camps and continued to grow closer to Carter’s family. She said she had no interest in seeing or
talking to her parents, and Tyrone said he only wanted to visit with them once
a month, at the most. Both children
indicated they were comfortable living apart and being adopted by different
parents.
In
July 2011, SSA initiated a home study to asses Carter’s suitability to adopt
Cheyenne. It discovered that Carter had
previously adopted four children with special needs, but she also was the
subject of several child abuse reports.
For example, in 2001, it was reported she had exposed her children to a
substantial risk by allowing them to spend time alone with her stepfather, who
was a registered sex offender. The
situation was investigated and it was determined Carter was not aware her
stepfather was a sex offender. She
agreed not to allow him to have any further contact with her children, and the
report was classified as unfounded for substantial risk.
In
addition, in 2007, it was reported Carter’s employer had exposed himself to one
of her children on several occasions while she was cleaning his house. When Carter learned of this, she stopped
working for the man. Also in 2007,
Carter let one of her older daughters move into her house with her
boyfriend. Carter did not know it at the
time, but the boyfriend had committed an act of sexual abuse when he was
younger. Two years later, in 2009,
Carter’s 16-year-old daughter was raped by a 19-year-old. The incident was investigated by SSA but
eventually turned over to the police.
Carter
was not determined to have knowingly placed her children at substantial risk of
harm in connection with any of the aforementioned incidents, but SSA was
concerned about her ability to protect Cheyenne. When interviewed by SSA, Carter was very
receptive to that concern. She gladly
accepted a referral for in-home counseling and said she would cooperate fully
with any recommendations that were made to her, because she loved Cheyenne and
wanted to adopt her very much.
In
fall 2011, Tyrone’s IEP team determined he should retake sixth grade, in order
to allow him to mature emotionally. He
was also taken off his medication for bipolar disorder and ODD and placed on a
new medication for his ADHD. Although he
was generally doing well in Colbert’s care, one time after Colbert’s husband
asked him to do some chores, he became defiant and broke down in tears when he
was told to go to his room. This
incident occurred following a visit between Tyrone and his parents. Tyrone made it clear he was opposed to
continued visitation and told his social worker he wanted to “stay with
[Colbert] forever.”
The
children’s permanent placement hearing began on October 19, 2011. Testifying in chambers, Cheyenne told the
judge she liked living with Carter, whom she called mom, and wanted to continue
living with her. She said it would be
fine if Carter adopted her, and she would be sad if she had to move out of her
house.
Also
testifying in chambers, Tyrone said he liked living with Colbert, and it would
be perfect if Colbert and her husband adopted him. He also said that he would be happy if he
never saw his parents again, because they had let him down.
The
children’s social worker Cynthia Enriquez testified she originally thought
Tyrone might be difficult to place for adoption because of his age and
behavioral issues. However, given
Colbert’s desire to adopt him and the fact he was doing well in her care,
Enriquez believed it was probable he would be adopted. Enriquez acknowledged SSA could not formally
classify Tyrone as being adoptable, because he had only been in Colbert’s home
for three and one-half months.
Nevertheless, Enriquez was encouraged by the fact Colbert had
demonstrated a strong commitment to Tyrone, and Colbert had informed her that
her husband was willing to adopt Tyrone.
Enriquez did not know if Tyrone had undergone the psychological testing
that was recommended for him, but she said such testing was for the purposes of
full disclosure to the prospective adoptive parents and was not determinative
of the child’s adoptability.
Speaking
to Cheyenne’s situation, Enriquez opined she was generally adoptable based on
her age, disposition and demonstrated coping skills. Enriquez also believed that Carter would be
able to safely care for Cheyenne and that her home study would eventually be
approved.
In
rendering its decision, the juvenile court described the children as
responsive, honest and “frankly adorable.”
While acknowledging they had some emotional, behavioral and educational
issues, the court recognized they had many positive attributes and had made
significant progress over the course of the case. The court also found Colbert and Carter were
suitable adoptive parents, and the children were doing well in their care. In light of all the circumstances, the court
found the children were specifically adoptable, and Cheyenne was generally
adoptable. Finding no exception to
termination applicable, the court terminated Mother and Father’s parental
rights and freed the children for adoption.
DISCUSSION
Mother
and Father contend there is insufficient evidence to support the juvenile
court’s finding Tyrone and Cheyenne are adoptable. We disagree.
Termination
of parental rights is authorized only if the court finds the children are
adoptable. (Welf. & Inst. Code,
§ 366.26, subd. (c)(1).) However,
“[a]lthough a finding of adoptability must be
supported by clear and convincing evidence, it is nevertheless a low
threshold: The court must merely
determine that it is ‘likely’ that the child will be adopted within a
reasonable time. [Citations.] 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. [Citations.]” (In
re K.B. (2009) 173 Cal.App.4th 1275, 1292; see also In re Gregory A. (2005) 126 Cal.App.4th 1554, 1561-1562 [“We give the
court’s finding of adoptability the benefit of every reasonable inference and
resolve any evidentiary conflicts in favor of affirming.”].)
The issue of adoptability turns on whether
the child’s age, physical condition, and emotional state make it difficult to
find the child an adoptive home. (
1642, 1649.) “Hence,
it is not necessary that the minor already be in a potential adoptive home or
that there be a proposed adoptive parent ‘waiting in the wings.’ [Citations.]”
(Ibid.) Nonetheless, “[u]sually, the fact that a prospective
adoptive parent has expressed interest in adopting the minor is evidence that
the minor’s age, physical condition, mental state, and other matters relating
to the child are not likely to dissuade
parent’s willingness to adopt generally indicates the minor is likely to be
adopted within a reasonable time either by the prospective adoptive parent or
by some other family.
[Citation.]” (
Even
when a child is not considered to be generally adoptable, he or she may be
found to be “specifically” adoptable, if a person
has been identified who is willing to adopt the child. (In re
Brandon T. (2008) 164 Cal.App.4th 1400, 1408.) In that situation, “‘the analysis shifts from
evaluating the characteristics of the child to whether there is any legal
impediment to the prospective adoptive parent’s adoption and whether he or she
is able to meet the needs of the child.’
[Citation.]” (
147, 158.)
In
challenging the juvenile court’s finding Tyrone is specifically adoptable,
Mother and Father argue there is insufficient evidence Colbert and her husband
were committed to adopting him, aware of
his special needs, or capable of handling those needs. However, Colbert had spent about five years
working as Tyrone’s CASA, and she was involved in nearly every aspect of the
case. As the juvenile court observed in
making its ruling, this exposed her to the full range of Tyrone’s emotional,
behavioral and educational issues.
Indeed, as the court found, “There is probably no one who knows [Tyrone]
better than she does.”
In
addition to being Tyrone’s CASA for nearly five years, Colbert was also
Tyrone’s caretaker for three and one-half months before the permanent placement
hearing took place. She has demonstrated
a deep commitment to his care and well-being, and she also reported her husband
is onboard with adopting Tyrone. Given
the Colberts’ experience with Tyrone and their stated intentions, there is
substantial evidence to support the juvenile court’s finding they are committed
to adopting Tyrone and aware of his special needs.
There
is also substantial evidence the Colberts are capable of meeting Tyrone’s
special needs. Because Tyrone had been
in their home for less than six months when the permanent placement hearing
took place, a formal home study had not been conducted to formally assess their
ability to care and provide for Tyrone.
However, “where there is no evidence of any specific legal impediments
to completing the adoptions process, parental rights may be terminated to a
specifically adoptable child regardless of whether a home study has been
completed.” (In re Brandon T., supra, 164 Cal.App.4th at p. 1410.)
Here, Mother and Father
have not identified any specific legal impediment that would prevent the
Colberts from adopting Tyrone. They
correctly point out that, at the time of the permanent placement hearing,
Tyrone had yet to undergo the psychological testing that had been recommended
for him. As the juvenile court
recognized, the results of such testing would be helpful as far as
understanding his behavior and assessing his future needs. (See generally In re Michael G. (2012) 203 Cal.App.4th 580, 590.) However, the record is replete with
information regarding Tyrone’s emotional state and his amenability to
counseling and psychological treatment.
Throughout the case he has been receptive to therapy, and he has shown progress
in terms of improving and controlling his disruptive behavior. Although he has been identified as a
candidate for psychological testing, there is nothing in the record to suggest
the results of such testing would constitute a legal obstacle to the Colberts
adopting him or dissuade them from doing so.
After all, Colbert resigned from her position as Tyrone’s CASA just so
she could adopt him. After nearly five
years on the case, it is reasonable to infer she knew what she was getting into
when she made this decision. Considering
as well that Tyrone very much wanted to be adopted by the Colberts, we have no
occasion to disturb the juvenile court’s finding he was specifically
adoptable.
As
for Cheyenne, Mother and Father argue that in light of her behavioral and
educational issues, and given that she was already nine years old at the time
of the permanent placement hearing, there is not substantial evidence to
support the juvenile court’s finding she is generally adoptable. However, the fact Carter has cared for
Cheyenne for over a year and wants to adopt her is itself strong evidence of
Cheyenne’s adoptability. (
pp. 1649-1650.)
Moreover, the record
shows Cheyenne has worked hard in school to overcome her learning disability,
she has generally responded well to therapy and medication, and she has made a
good adjustment into Carter’s home. Her
behavior and progress haven’t been perfect throughout the case, but by all
accounts, she has flourished in Carter’s care and made great strides in terms
of overcoming the obstacles in her life.
Her ambition and record of improvement fully support the juvenile
court’s finding she is generally adoptable.
Because there is substantial evidence to support this finding, we need
not consider whether she is specifically adoptable. (In re
R.C. (2008) 169 Cal.App.4th 486, 494; In
re Carl R. (2005) 128 Cal.App.4th 1051, 1061.)
DISPOSITION
The
judgment is affirmed.
BEDSWORTH,
ACTING P. J.
WE CONCUR:
ARONSON, J.
IKOLA, J.
name="_ftn1" title=""> [1] In
conjunction with this ruling, the court denied Father’s request for custody of
the children.
