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In re T.D.

In re T.D.
08:07:2012





In re T






In re T.D.



















Filed 8/2/12 In re T.D. CA1/5











NOT TO BE
PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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



FIRST APPELLATE
DISTRICT



DIVISION FIVE






>










In re T.D. et al.,
Persons Coming Under the Juvenile Court Law.






SAN
FRANCISCO

HUMAN


SERVICES AGENCY,

Plaintiff and
Respondent,


v.

T.D.,

Defendant and Appellant.






A133796

(>San Francisco> City and

>County> Super. Ct.> Nos.

JD08-3042 & JD08-3224)




T.D.
(Mother) appeals an order terminating her parental rights over her three sons
T.D. (To.), born in August 2004; S.D. (Sa.), born in November 2006; and S.D.
(Sh.), born in April 2008.href="#_ftn1"
name="_ftnref1" title="">[1] (Welf. & Inst. Code, § 366.26.)href="#_ftn2" name="_ftnref2" title="">[2] Mother’s sole href="http://www.mcmillanlaw.com/">contention on appeal is that the
juvenile court’s finding that the Minors are adoptable is not supported by
substantial evidence. We disagree and
affirm.

BACKGROUND

In
May 2008, To. and Sa. were declared dependents of the juvenile court and ordered
to reside with Mother under supervision by the href="http://www.fearnotlaw.com/">San Francisco Human Services Agency
(Agency). In November, the Minors were
ordered temporarily detained in foster care after being removed from Mother’s
home due to physical abuse and
Mother’s failure to protect them from Sh.’s father, A.G.href="#_ftn3" name="_ftnref3" title="">[3] Mother has an extensive history of domestic
violence and the Minors have witnessed severe domestic violence. In April 2009, Sh. was declared a dependent
of the juvenile court.

The
Minors remained in foster care until July 15, 2009, when the court ordered them
returned to Mother under a family maintenance plan. In October, the Minors were returned to
protective custody and placed in the same foster home.

In
January 2010, reunification services were terminated as to Mother and a section
366.26 permanency planning hearing (.26 hearing) was set for June 2. The Agency’s June 2010 “366.26 WIC Report”
recommended legal guardianship as the permanent plan and dismissal of the
dependency. At the July .26 hearing the
court found that termination of parental rights would be detrimental to the
Minors because their foster parents were not yet in a position to adopt
them. In September, the court reduced
Mother’s visitation with the Minors from one 2-hour visit per week to one
2-hour visit per month.

On
March 9, 2011, the Agency filed a status review report recommending long-term
placement as the permanent plan. A March
29 addendum report recommended setting a .26 hearing with adoption as the
permanent plan. A .26 hearing was set
for August 17 and was continued to September 21.

August 2011 .26
Report


The
Agency’s August 2011 .26 report by Agency social worker Christine Burns
recommended termination of parental rights and adoption by the Minors’ foster
parents as the permanent plan. The
report stated the following:

To.
suffered speech delay and behavioral issues related to his posttraumatic stress
disorder (PTSD) diagnosis. href="http://www.fearnotlaw.com/">Attention deficit hyperactivity disorder
(ADHD) medication had been prescribed; and audiology, ophthalmology, and
psychiatry referrals had been made for him.
To. qualified for special education at school due to his speech delay and
received speech and language services at school. His cognitive abilities were average in all
areas and he was well liked by students and teachers. He was described by the school psychologist
as “resilient, engaging and intelligent . . . with a variety of
strengths,” although he struggled to work at his academic level and required
constant redirection in the classroom.

Burns
described To. as “outgoing, engaging and sweet.” Although he had made tremendous progress at
school managing his negative and impulsive behaviors, after resumption of his
supervised visits with Mother, teachers noted a sudden regression in his
behavior coinciding with the visits. To.
was struggling with poor impulse control, physical and verbal aggression toward
others, “ ‘emotional flooding’ ” relating to past trauma, and
significant regression in reading skills.
His PTSD symptoms were most acute before and after visits with
Mother. To. had just begun individual
and family therapy sessions. Seneca
Center “wrap services” were providing in-school and in-home clinical and case
management support to him and his foster parents.

To.
had several supervised, therapeutic visits with Mother during the last review
period. Although they both benefitted
from the therapeutic intervention, before and after visits To. continued to
display increased PTSD symptoms at the foster home and at school.

Sa.
was evaluated at the Golden Gate Regional Center for a possible speech and
language delay and found not to qualify for services. However, he was receiving services at school
for a speech delay. He was also referred
for a neurological evaluation to rule out cerebral palsy. Described by Burns as “shy, sweet and
empathetic,” Sa. was having difficulty adjusting to the structured social
environment at his prekindergarten program and would be selectively mute when
staff tried to communicate with him.
This appeared to be a behavioral issue.
Sa. qualified for special education services at school and was attending
family therapy sessions when appropriate.

Sh.
had been diagnosed with mild valvar pulmonic stenosis, a congenital heart
condition for which semi-annual follow up visits were recommended, but required
no restriction of activities. Possible
developmental delays were noted, Sh. was recently evaluated for possible fetal
alcohol syndrome, and he was referred to the Golden Gate Regional Center for a
developmental assessment. It appeared
Sh.’s developmental delays would require ongoing monitoring and evaluation, and
the school district was to determine if he qualified for special education
services. Described by Burns as
“rambunctious and fearless,” there were concerns Sh. had an attachment or other
developmental disorder. He generally had
an aversion to positive and nurturing touch, although he was sometimes
affectionate toward strangers.

Before
and after visits with Mother, all three Minors demonstrated increased
aggression and anxiety.

>Foster Parents

The
Minors’ foster parents, D.D. and C.J., with whom the Minors had resided between
February and July 2009 and continuously after October 2009, were ready and
willing to adopt the Minors, and had agreed to a postadoption contact agreement
which provided for mail contact between the Minors and Mother. The adoptive home study was in progress but
had not yet been completed. A joint
adoptability assessment was completed in July 2011. The assessment noted D.D. and C.J. had been
cleared for criminal and “CWS” histories as part of their foster family
licensing requirements. They had been
actively involved in the Minors’ lives since February 2009 and had been
providing the Minors excellent care and protection. D.D.’s experience as a special education
teacher enabled her to be proactive in obtaining the Minors the necessary
academic, medical, and mental health support services. D.D. and C.J. do not have children of their
own; they treat the Minors as their own and are committed to providing them a
permanent adoptive home. The assessment
states, “It is clear that each boy’s special needs and strengths are
acknowledged and nurtured by [D.D. and C.J.].”
It noted that D.D. and C.J. had completed all foster parent trainings,
had been foster parents for five years, and were very informed about caring for
children with special needs. Their
commitment to adopting the Minors was demonstrated in their follow through with
the myriad of services and providers the Minors required in order to stabilize
their behavior at home and at school.
To. stated he wanted to live with the foster parents and felt safe in
their home. Sa. and Sh. were too young
to give a statement, but Burns observed them to be thriving in the foster
parents’ care.

The
report concluded that due to the foster parents’ perseverance and commitment,
the initial service goals had been met and the “Seneca in-home wrap-around
services” would terminate. Although the
foster parents had previously agreed only to legal guardianship for the Minors
as services were put in place and assessments completed, the foster parents
obtained a clearer idea of each child’s special needs, said they were confident
they could meet those needs, and said they were committed to adopting
them. Dr. Castro would continue therapy
with To. to manage his PTSD and would work with the foster parents, Sa., and
Sh. on developing strong and healthy emotional attachments. Burns had obtained funding to enable the
family to continue this therapeutic work.

November 2011
Addendum Report


Burns’s
November 2011 addendum report provided an update on the Minors’ progress. To., age 7, continued to have difficulty
managing his PTSD symptoms. His
behaviors were most acute around visits with Mother and he seemed relieved when
told he would be having his final visit with her. To.’s therapist did not recommend any ongoing
contact with Mother, although it was recommended that Mother maintain her
connection with To. through letter writing or e‑mail. To. was being followed at a hospital
psychiatric department and had been prescribed medication which appeared to be
helping him manage his PTSD and anxiety symptoms. It was recommended that To. continue in
individual and family therapy to address his past trauma and learn to cope and
manage his anxiety and PTSD symptoms.

Sa.,
age 4, was receiving weekly speech and language services and making good
progress in the classroom. He began
therapy sessions in October 2011 and would continue to work on his trauma
issues in the context of family therapy sessions with the foster parents.

Sh.,
age 3, had recently been diagnosed with ADHD and was being evaluated for medication. Given his marked lack of interest in potty
training, he was in daycare and unable to be enrolled in a Headstart
program. Since visits with A.G. were
terminated, Sh. did not display the behaviors he had previously displayed
before and after visits. Sh. was very
responsive to D.D.’s behavioral interventions.
He would continue to participate in family therapy with the foster
parents.

The
addendum report noted that To. had been removed from Mother’s home seven times,
and Sa. and Sh. had been removed from her home four times due to her failure to
protect them from physical abuse and neglect.
It also noted that previously, in Florida, Mother had two older children
removed from her custody due to abuse and neglect.

The
addendum report stated that the Minors’ foster parents were ready and willing
to adopt the Minors, all of whom had “thrived and blossomed” in their
care. It was recommended that To.
continue in individual and family therapy to address his past trauma and learn
to manage his anxiety and PTSD symptoms.

November 2011 .26
Hearing


At
the November 2011 .26 hearing, Burns opined the Minors are adoptable because
they can adequately attach to their prospective adoptive parents and their
special needs are well addressed in their current placement. She also noted that the Minors’ physical
health is good and they engage easily with people. In describing the Minors’ special needs,
Burns said To.’s PTSD presents as high anxiety and creates behavioral issues at
home and at school. The Minors have
speech issues for which they are getting resources at school. Burns said the prospective adoptive parents
are very much aware of the Minors’ special needs. In addition, the foster mother works in a
special education classroom and is well-educated as to how to assess and cope
with special needs in that setting.
Burns said the Minors behavioral and emotional issues have “vastly
improved” since living in a home with no trauma. She said that their current caretakers want
to adopt the Minors and that, if adopted, their needs would be met in their
current home. All three Minors have
lived with their current caretakers for at least two years. Burns said there was no reason why the Minors
should not be adopted.

Burns
described the Minors’ current foster home as an intensive therapeutic foster
home. She said the current foster
parents had received many services in the last 18 months. In particular, they had received intensive
Seneca wrap-around services, however, those services would be ending that month
because “they’ve completed their goals.”
Burns acknowledged that in July 2010, four days before the guardianship
hearing, the prospective adoptive parents “backed out” of becoming the Minors’
legal guardians due to the extent of the Minors’ special needs. However, Burns said the prospective adoptive
parents were now willing and ready to adopt them. Burns said the Minors had always lived
together, are closely bonded, and it is important that they remain together in
a placement. Burns opined that the Minors
are adoptable even assuming the prospective adoptive parents do not adopt then.

At
the conclusion of the .26 hearing, the court concluded, by clear and convincing
evidence, that the Minors are adoptable.

DISCUSSION

Mother
contends the court’s finding that the Minors are adoptable is not supported by
substantial evidence. In particular, she
argues, because the Minors all have special needs and behavioral issues which
render them not generally adoptable and there is no guarantee the prospective
adoptive parents will be approved to adopt them or are committed to adopting
them with a full understanding of their special needs, the adoptability finding
must be reversed.

Section
366.26, subdivision (c)(1) provides: “If
the court determines, based on the assessment provided . . . and any
other relevant evidence, by a clear and convincing standard, that it is likely
the minor will be adopted, the court shall terminate parental rights and order
the child placed for adoption. . . .” We review a finding of adoptability for
substantial evidence. (>In re Carl R. (2005) 128 Cal.App.4th
1051, 1060-1061.) In doing so, we review
the record in the light most favorable to the court’s findings and draw all
evidentiary inferences that support the court’s determination. (In re
Nada R.
(2001) 89 Cal.App.4th 1166, 1177.)

In
determining adoptability, the focus is on whether a child’s age, physical
condition, and emotional state will create difficulty in locating a family
willing to adopt. (In re David H. (1995) 33 Cal.App.4th 368, 378.) “[T]he law does not require a juvenile court
to find a dependent child ‘generally adoptable’ before terminating parental
rights. All that is required is clear
and convincing evidence of the likelihood that the dependent child will be
adopted within a reasonable time.
[Citations.] The likelihood of
adoptability may be satisfied by a
showing that a child is generally
adoptable, that is, independent of whether there is a prospective adoptive
family ‘ “ ‘waiting in the wings.’ ” ’ [Citation.]”
(In re A.A. (2008) 167
Cal.App.4th 1292, 1313.) However, the
court may consider “a prospective adoptive parent’s willingness to adopt as
evidence that the child is likely to be adopted within a reasonable time. [Citation.]”
(Ibid.) “[T]he existence of a prospective adoptive
parent, who has expressed interest in adopting a dependent child, constitutes
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 other words, a prospective adoptive
parent’s 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. [Citation.]” (Id.
at p. 1312.)

If
the court finds the child is likely to be adopted, it does not examine the
suitability of the prospective adoptive home.
(In re Carl R., supra, 128
Cal.App.4th at p. 1061.) Only if the
child is “specifically adoptable,” meaning he or she is adoptable “only because
one family is willing to adopt” (id.
at p. 1062), does the analysis shift 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”
(In re Helen W. (2007) 150
Cal.App.4th 71, 80).

Mother
argues, since To. was seven years old at the time of the .26 hearing, he was
nearing an age which was not favorable to adoption. In support of this contention she relies on >In re Kristin W. (1990) 222 Cal.App.3d 234, 253 [children ages 10, 8, and
7 might be difficult to place for adoption due to their ages]. However, that case does not hold that a minor
upon reaching a certain age is per se not generally adoptable. Age is but one of the factors juvenile courts
are to consider in deciding general adoptability. (In re
David H., supra,
33 Cal.App.4th at p. 378.)
That To.’s age is not an impediment to a ruling of his general
adoptability is shown in the willingness of prospective adoptive parents, D.D.
and C.J., to adopt him. (>In re A.A., supra, 167 Cal.App.4th at p.
1312.)

Mother
also argues the prospective adoptive parents did not have a completed home
study and had not been approved to adopt the Minors. Her failure to provide any legal authority in
support of the argument forfeits the contention on appeal. (In re
S.C
. (2006) 138 Cal.App.4th 396, 408.)
In any case, “where there is no evidence of any specific legal
impediments to completing the adoption process, parental rights may be
terminated to a specifically adoptable child regardless of whether a home study
has been completed.” (>In re Brandon T. (2008) 164 Cal.App.4th
1400, 1410.) In addition, under these
circumstances, a special needs child may be deemed adoptable before the
prospective adoptive parent has been “approved.” (In re
K.B.
(2009) 173 Cal.App.4th 1275, 1293.)

Mother
next argues the Minors’ behavioral issues and special needs and their sibling
bond which required joint placement “undermined the opinions of” the Agency and
Burns that the Minors are generally adoptable.
We disagree.

>In re Helen W. is persuasive. In upholding an adoptability finding the
court stated, “Both children suffer from conditions that require time to
determine the full severity of the issues they will face. But [the agency] methodically reported the
children’s medical, developmental, emotional, and behavioral conditions
throughout the two years of their dependency.
The adoption assessment included a synopsis of the children’s conditions. And the foster mother—the prospective
adoptive parent—accompanied the children to appointments, advocated for
services, and was fully aware of their medical and psychological conditions. Nowhere in the statutes or case law is
certainty of a child’s future medical condition required before a court can
find adoptability. [Citation.]” (In re
Helen
W., supra, 150 Cal.App.4th at p. 79; see also In re K.B., supra, 173 Cal.App.4th at pp. 1292-1293 [adoptability
finding supported by prospective adoptive parents’ willingness to adopt three
siblings despite awareness of children’s developmental delays and behavioral
problems].) Here, the Minors’
developmental delays and psychiatric and behavioral issues were thoroughly
documented in the Agency’s reports and were well known to the prospective
adoptive parents who had cared for them for more than two years. The prospective adoptive parents had been
proactive in seeking out assessments and services for the Minors and had
created a safe, nonabusive family environment for the Minors wherein the Minors
were “thriv[ing] and blossom[ing],” which brought about a marked improvement in
their behavior. We conclude substantial
evidence supports the juvenile court’s finding that the Minors were likely to
be adopted.

Mother
also argues that it is unclear whether the court relied solely on the
prospective adoptive parents’ willingness to adopt in finding the Minors
adoptable. She asserts that if the court
relied solely on the prospective adoptive parents’ willingness to adopt, its
finding was unsupported by substantial evidence. She concedes there appears to be no legal
impediment to adoption and concedes the prospective adoptive parents had an
understanding of To.’s and Sa.’s special needs; but argues the full extent of
Sh.’s special needs was not known, services for the Minors were about to end,
and, therefore, there is no substantial evidence that the prospective adoptive
parents would be willing or able to meet the Minors’ special needs.

>In re K.B. is persuasive. There the court stated: “Here, the children had been residing with
their prospective adoptive parents since October 2005. It had been reported since 2002 that Kr. and
Ka. had developmental delays resulting from fetal alcohol syndrome, and all
three children had speech and educational problems. Ka. had apparently at some earlier point
exhibited the behaviors that motivated the prospective adoptive mother’s
request for a psychiatric evaluation.
Despite these problems, the prospective adoptive parents wished to adopt
the children, and they remained committed to adopting the children as of the
date of the termination hearing, despite the continuing and perhaps increased
difficulties described by the parents.
There is no evidence that the adoption will not take place as soon as
the legal process permits. This is
sufficient to support the conclusion that it is reasonably likely that the
children will be adopted within a reasonable time: ‘[I]t is only common sense that when there is
a prospective adoptive home in which the child is already living, and the only
indications are that, if matters continue, the child will be adopted into that
home, adoptability is established. In
such a case, the literal language of the statute is satisfied, because “it is
likely” that that particular child will be adopted.’ [Citation.]”
(In re K.B., supra, 173
Cal.App.4th at pp. 1292-1293.)

Similarly,
here, the Minors had resided with the prospective adoptive parents, D.D. and
C.J., for more than two years. That
their home had been designated an intensive therapeutic foster home establishes
their commitment to resolving the Minors’ special needs. The prospective adoptive parents had been
instrumental in obtaining assessments and services for the Minors, treated them
like their own children and, as of the .26 hearing, were committed to adopting
all three of them. No evidence suggests
that the prospective adoptive parents were not fully aware of Sh.’s special
needs and the possibility that he suffers from fetal alcohol syndrome,
attachment disorder, or developmental delays, or would be unwilling to adopt
him or the other Minors if such problems are conclusively identified in the
future. In addition, D.D. and C.J. had
completed all foster parent trainings, had been foster parents for five years,
and were very informed about caring for children with special
needs—particularly in light of D.D.’s work as a special education teacher. In addition, D.D. and C.J. had amply
demonstrated their ability to meet the children’s needs, as reflected by the
marked improvement in the Minors’ behavior since being placed with D.D. and
C.J. Finally, the prospective adoptive
parents were willing to encourage the Minors to maintain written contact with
Mother, as recommended by the Minors’ therapist. We conclude that even if the juvenile court
had relied solely on the prospective adoptive parents’ willingness to adopt,
the court’s adoptability finding would be supported by substantial evidence.





DISPOSITION

The .26
hearing order is affirmed.









SIMONS,
Acting P.J.







We concur.









NEEDHAM, J.









BRUINIERS, J.







id=ftn1>

href="#_ftnref1" name="_ftn1" title="">[1] To., Sa., and Sh. are collectively referred
to herein as the Minors.

id=ftn2>

href="#_ftnref2" name="_ftn2" title="">[2] All undesignated section references are to
the Welfare and Institutions Code.

id=ftn3>

href="#_ftnref3" name="_ftn3" title="">[3] A.G., is not a party to this appeal, nor is
W.H., the alleged father of Sa. The
alleged father of To. is deceased.








Description T.D. (Mother) appeals an order terminating her parental rights over her three sons T.D. (To.), born in August 2004; S.D. (Sa.), born in November 2006; and S.D. (Sh.), born in April 2008.[1] (Welf. & Inst. Code, § 366.26.)[2] Mother’s sole contention on appeal is that the juvenile court’s finding that the Minors are adoptable is not supported by substantial evidence. We disagree and affirm.
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