In re N.H.
Filed 1/2/13 In
re N.H. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
THIRD
APPELLATE DISTRICT
(Shasta)
----
In re
N.H. et al., Persons Coming Under the Juvenile Court Law.
SHASTA
COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and
Respondent,
v.
DEBBIE
B.,
Defendant and
Appellant.
C071106
(Super. Ct. Nos. 10JVSQ2702902, 10JVSQ2703002,
10JVSQ2747202, 10JVSQ2846401, 11JVSQ2892001)
Debbie
B., mother of the minors, appeals from orders of the
that C.G. and K.G. were likely to be adopted within a reasonable time was not
supported by substantial evidence because C.G. had exhibited
the past and K.G. required a high level of supervision. We conclude substantial evidence supports the
trial court’s finding of adoptability.
Accordingly, we affirm the juvenile court’s orders.
FACTS
Because the issue on appeal is
limited, the recitation of facts is limited to events that concern three of the
minors who are currently placed together in the same prospective adoptive
family: C.G., E.G., and K.G.
The minors, C.G., age 6, E.G., age
5, and K.G., age 22 months, were detained in April 2010 due to domestic violence
between the parents that led to both mother and father being arrested.
services in September 2010 but the parents failed to
May 2011. In December 2010,
2010 and had ongoing behavioral problems often expressed by hitting peers and
adults. After K.G. was placed in the
same home as C.G., C.G. would intentionally hurt K.G. and wake K.G. when the
family was asleep. C.G. also became
increasingly destructive, i.e., slamming a bedroom door so hard that plaster
fell from the walls. C.G. was in
counseling to address his behaviors and, after a
court authorized administration of methylphenidate in the form of Ritalin to
treat his Attention Deficit Hyperactivity Disorder (ADHD) symptoms. C.G. initially had a positive reaction to the
medication but over time his assaultive behavior resumed. C.G. also had a serious lack of impulse
control during sibling visits that made safety at visits a significant
concern. A few weeks after K.G.’s
placement, the foster parents asked that both minors be moved.
The report for the section 366.26
hearing scheduled for September 2011 addressed C.G., E.G., and K.G. and
recommended a continuance for home finding.
At the time of the report, the three minors were placed in separate
homes and had weekly visits with each other.
C.G. continued to be a high energy child but was showing significant
improvement after a medication change to the Concerta form of methylphenidate
in May 2011. The social worker described
his progress as “ ‘amazing’ †although his impulsivity still affected his
school performance. K.G. continued to
need a high degree of supervision and was referred to Far Northern Regional
Center (FNRC) for evaluation of his unusual behavior such as eating nonfood
items, destructive behaviors such as damaging walls and cabinets, and walking
on tiptoes. FNRC denied eligibility, and
a new referral for therapeutic services was made. Currently, K.G. was in counseling. The report stated there were many homes
available and, while C.G. and K.G. had some behavioral challenges, “these
should not be a barrier in identifying a family.†The report further stated the three minors
possessed characteristics that made them adoptable and there were families with
the skills and desire to parent them.
The court adopted the recommendation
and continued the case for home finding.
The report for the continued section
366.26 hearing recommended termination of parental rights as to C.G., E.G., and
K.G. The three minors, who each had
multiple placements over the course of the two dependency proceedings, were
moved to a prospective adoptive home together in December 2011. The three minors had been in the placement
about two months. C.G. was described as
a high energy child who enjoyed outdoor sports and activities. C.G. was continuing on the medication
Concerta to treat his ADHD and his caregivers reported he was doing well. C.G. was demonstrating appropriate social
skills, followed directions, and was kind to the family pets and livestock. C.G. continued to have some distractibility
in school and some sleep issues that were being addressed by his doctor. C.G. occasionally used inappropriate language
but responded to redirection. K.G.
continued to require a high level of supervision but had no behavioral problems
at school. K.G. still showed some tiptoe
walking and putting items in his mouth but stopped with a gentle reminder. The caregivers reported K.G. was an active,
loving, inquisitive, and friendly child.
The report stated the behavioral challenges were evident but improved,
and C.G., E.G., and K.G. were adjusting to living as siblings in a new
environment. The three minors were in
generally good health and doing reasonably well in school.
The report further stated that the
prospective adoptive parents were in their 50s and retired. They had an approved adoption home study and
had two adopted children in the home in addition to the three minors. The report said the three minors were
healthy, attractive, and delightful children with engaging personalities. Their behavioral challenges were not so
severe as to impede adoption. All three
minors were developing a relationship with the prospective adoptive parents and
wished to be adopted. The prospective
adoptive parents wanted to adopt the minors and were committed to them. The report further stated that, even if not
adopted by this family, there were 25 potential families with approved home
studies who were interested in children with similar characteristics. The three minors were experiencing stability
and predictability in their current placement and their behavioral and
developmental issues continued to improve.
At the section 366.26 hearing in
March 2012, the parents submitted on the report. The court terminated parental rights and
selected adoption as the permanent plan for C.G., E.G., and K.G.
DISCUSSION
Mother
contends the evidence does not support the juvenile court’s finding that C.G.
and K.G. are likely to be adopted within a reasonable time. Specifically, she asserts that the decision
to terminate is premature based on C.G.’s history of behavioral problems
including aggression against K.G., the multiple placements of the minors, the
history of trauma at the hands of the parents, and K.G.’s behavioral and
developmental issues. Mother argues the
decision should be delayed until C.G. and K.G. demonstrate greater stability in
the current placement. We disagree.
“If
the court determines, based on the assessment . . . and any other
relevant evidence, by a clear and
convincing standard, that it is likely the child will be adopted, the court
shall terminate parental rights and order the child placed for adoption. The fact that the child is not yet placed in
a preadoptive home nor with a relative or foster family who is prepared to
adopt the child, shall not constitute a basis for the court to conclude that it
is not likely the child will be adopted.â€
(§ 366.26, subd. (c).)
Determination
of whether a child is likely to be adopted focuses first upon the characteristics
of the child. (In re Sarah M.
(1994) 22 Cal.App.4th 1642, 1649.)
The existence or suitability of the prospective adoptive family, if any,
is not relevant to this issue. (Ibid.;
In re Scott M. (1993) 13 Cal.App.4th 839, 844.) “[T]here must be convincing evidence of the
likelihood that the adoption will take place within a reasonable time.†(In re Brian P. (2002)
99 Cal.App.4th 616, 625.) The fact
that a prospective adoptive family is willing to adopt the minor is evidence
the minor is likely to be adopted by that family or some other family in a
reasonable time. (In re Lukas B.
(2000) 79 Cal.App.4th 1145, 1154.)
When the sufficiency of the evidence
to support a finding or order is challenged on appeal, even where the
clear and convincing, the reviewing court must determine if there is any
substantial evidence -- that is, evidence that is reasonable, credible and of
solid value -- to support the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d
908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination, we recognize
that all conflicts are to be resolved in favor of the prevailing party and that
issues of fact and credibility are questions for the trier of fact. (In re Jason L., supra, 222
Cal.App.3d at p. 1214; In re Steve W. (1990) 217 Cal.App.3d 10,
16.) The reviewing court may not reweigh
the evidence when assessing the sufficiency of the evidence. (In re Stephanie M. (1994) 7 Cal.4th
295, 318-319.)
The characteristics of both C.G. and
K.G. show they are likely to be adopted in a reasonable time. Both minors are generally healthy and were
doing reasonably well in school. C.G.
was on medication to treat his ADHD and had responded well once the appropriate
form was prescribed. He had shown great
progress on the medication although some distractibility in school
remained. His aggressive tendencies had
diminished as shown by his appropriate treatment of the family pets and
livestock and the lack of any incidents of attempting to harm K.G. after the
three siblings were placed together.
K.G. was also showing improvement in behavioral and developmental
issues, needing only gentle reminding to stop inappropriate behavior. He had no behavioral problems in school and
his caregivers considered him to be a loving, inquisitive, and friendly
child. As a three-year-old, he would
necessarily require close supervision.
All the minors were benefitting from the predictable and stable
placement. While C.G.’s age and the size
of the sibling group could have made the minors less adoptable, the current
caretakers expressed a strong desire to adopt all three minors. Further, the social worker’s preliminary
search found another 25 families who were interested in children with similar
characteristics. Ample evidence
supported the juvenile court’s finding that C.G. and K.G. were likely to be
adopted by this family or some other family within a reasonable time. (In re Angelia P., supra, 28 Cal.3d at p. 924; In re Jason L
p. 1214.)
DISPOSITION
The
orders of the juvenile court terminating parental rights of the five minors are
affirmed.
HOCH , J.
We
concur:
BLEASE ,
Acting P. J.
MAURO , J.
name="_ftn1" title="">[1] Undesignated
statutory references are to the Welfare and Institutions Code.
name="_ftn2" title="">[2] Mother filed notices
of appeal for each of the five minors.
However, the sole argument raised in this appeal is adoptability of C.G
and K.G. Respondent requests that we
dismiss the appeals as to the remaining three minors and issue
remittiturs. Mother acknowledges that
the termination orders for N.H., N.B., and E.G. should be affirmed. Thus, we affirm the orders as to these three
minors.
