In re T.K.
Filed 2/22/13 In re T.K. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re T.K., a Person Coming Under the Juvenile Court Law.
SAN BERNARDINO
COUNTY CHILDREN
AND FAMILY SERVICES,
Plaintiff
and Respondent,
v.
T.K.,
Defendant
and Appellant.
E057082
(Super.Ct.No.
J239158)
OPINION
APPEAL from the Superior
Court of
Bernardino County.
Christopher B. Marshall, Judge.
Affirmed.
Pamela Rae Tripp, under appointment
by the Court of Appeal, for Defendant and Appellant.
Jean-Rene Basle, County
Counsel, and Regina
A. Coleman, Assistant County Counsel,
for Plaintiff and Respondent.
Tanya K. (hereafter mother) appeals
an order terminating her parental rights to her son, T.K., and placing the
child for adoption. She contends that,
in light of several failings by San
Bernardino County Children and Family Services (CFS), there was
insufficient evidence to support the juvenile court’s finding that T.K. is
generally adoptable. She contends that
it is not sufficient to find that the child is likely to be adopted by his
foster parents, because, if that adoption falls through, T.K. may become a
legal orphan because his late-discovered developmental delays and the sudden
onset of emotional problems render him not
generally adoptable.
We conclude that substantial
evidence supports the finding that it is likely that T.K. will be adopted by
his foster parents within a reasonable time.
Moreover, even if that adoption falls through and no other adoptive
parent can be found, parental rights can be reinstated. (Welf. & Inst. Code, § 366.26, subd. (i)(3).)
court’s finding that T.K. is generally adoptable does not require reversal of
the order appealed from.
FACTUAL AND PROCEDURAL HISTORY
On May 26, 2011, T.K., then 15 months old, was detained by
CFS based on mother’s false report to the Culver City
police that he had been kidnapped by Mtume Elam,
who was, according to mother, her pimp.
She said that Elam
beat her and kept her away from her child.
The child was located at a home in San Bernardino. The adult in the home who was caring for T.K.
told police that she was a childhood friend of Elam,
and that mother and Elam
had brought T.K. to her house in March or April of that year and had left him
in her care. Mother had not visited T.K.
since she left him there, but she did provide money for his support. Mother later admitted that she had lied about
Elam kidnapping
T.K. and admitted that she had a cocaine and alcohol problem. She acknowledged that she was engaging in
prostitution.
Mother was given assistance in
moving to a safe location, and T.K. was placed in confidential foster
care. T.K. was in reasonably good
physical condition, although he was dirty and appeared underweight.
was eventually arrested for pimping and was returned to prison on a parole
violation. Although mother had been
arrested for child endangerment, the district attorney declined to file
charges.
Mother’s three older children had
been removed from her custody by authorities in Ohio because mother was
“partying all of the time, using heroin and allowing strange men to come over,â€
according to mother’s aunt, A.K. A.K.
reported that mother locked the children in a bedroom while she “partied with
strangers.†Mother’s oldest child was
living with his paternal grandmother, and the two younger children lived with
their father.
Mother and T.K. had lived with A.K.
for the first eight months of T.K.’s life.
A.K reported that mother was drinking daily to the point of intoxication
and using marijuana. A.K. eventually
asked mother to leave her home. Mother
then came to California to meet Elam,
whom she had “met†via the internet while he was in prison. Once in California,
mother began to engage in prostitution under Elam’s
aegis.
A dependency petition was filed on May 31, 2011. At the detention hearing, T.K. was removed
from mother’s custody and placed in a specialized care foster home. Family reunification services and monitored
visitation were ordered for mother, pending development of a case plan. No information was then available as to an
alleged father or any relatives as potential placements.
Between the detention hearing and
the jurisdiction/disposition hearing, mother did not ask about T.K.’s
well-being and did not ask to visit him.
However, mother did attend the jurisdiction/disposition hearing. She reported that she had moved to Las
Vegas but had no permanent address. She waived trial, and the court found the
allegations in the petition true as amended.
continued for mother and ordered monitored visitation for one hour per
week. Mother gave CFS the names, or
partial names, of three possible fathers, all of whom resided in Ohio. She did not provide sufficient information to
permit CFS to contact any of the possible fathers. The court found all of the possible fathers
to be alleged fathers not entitled to services.
A status review report written for
the six-month review hearing stated that mother had made no progress in
resolving the problems which led to the dependency. She had refused to participate in services
and had ceased visiting with T.K.
Although mother had visited consistently for about two months, she had
last visited T.K. approximately five months before the date the report was
written. Mother had also not
communicated with the social worker for about three months prior to the report
date. In the final telephone call
between mother and the social worker, mother stated that she knew she would
lose T.K. but that she was not interested in the social worker’s offer to place
her in an inpatient substance abuse program in San
Bernardino. She
admitted that she had been arrested for “solicitation†in Las
Vegas about two months earlier. Nevertheless, she stated that she wanted to
reunify with T.K.
The social worker recommended that
services be terminated, that T.K. remain with his foster parents, and that the
court order initiation of an interstate compact process to place T.K. with A.K.,
the maternal aunt in Tennessee,
or with H.W., a maternal cousin in Ohio,
both of whom had expressed interest in caring for T.K.
Mother did not appear at the
contested review hearing. The court
terminated services and set a hearing on termination of parental rights and
determination of a permanent plan for T.K., pursuant to section 366.26. The court ordered monitored visitation for
mother and ordered initiation of the interstate compact process for the
maternal aunt in Tennessee. The court ordered the clerk’s office to
provide mother with the documents necessary to seek writ review of the order
terminating services. The documents were
sent to mother’s last known address but returned as undeliverable.
By packet dated May 22, 2012, the social worker notified the
court that she no longer recommended assessing the maternal aunt for placement,
in that she had concluded that it was in T.K.’s best interest to be adopted by
his foster mother.
title="">[4] She reported that she had informed the
maternal aunt of her observations as to T.K.’s best interests, and that the
aunt had informed her that she had changed her mind about taking T.K. After a conversation with mother, who had
told her that she wanted the aunt to take T.K. so that mother could eventually
take him back, the aunt had realized that mother was not going to change. She agreed that adoption by the foster mother
was the best option for T.K. She
reported that the maternal cousin and other family members agreed with that
conclusion.
In the report for the section 366.26
hearing, the social worker reported for the first time that T.K. had been
diagnosed as having unspecified developmental delays and concerns. The report also stated that T.K. was having
severe temper tantrums and was smearing and eating feces. A SART (Screening, Assessment, Referral and
Treatment) had been completed; however, the report does not state the
results. Despite these issues, the
social worker stated that T.K. was likely to be adopted by his foster
parents. She stated that he was very
attached to the foster parents, as they were to him, that they were committed
to raising him to adulthood, and that they appeared to be appropriate for
adoptive placement.
At the section 366.26 hearing, the
court found by clear and convincing evidence that it was likely that T.K. would
be adopted and that the adoption was likely to be finalized within 12
months. The court terminated parental
rights.
Mother filed a timely notice of
appeal.
LEGAL ANALYSIS
SUBSTANTIAL EVIDENCE SUPPORTS THE COURT’S FINDING
OF ADOPTABILITY
A juvenile court may terminate
parental rights only if it determines, by clear and convincing evidence, that
it is likely that the child will be adopted.
(§ 366.26, subd.
(c)(1).) Mother contends that the
juvenile court’s finding that T.K. is likely to be adopted is not supported by
the requisite clear and convincing
evidence.
Standard
of Review
Mother cites In re Jasmon O. (1994) 8 Cal.4th 398, in which the California
Supreme Court stated the standard of review applicable to a claim of
insufficient evidence to support termination of parental rights as
follows: “[W]e view the record in the
light most favorable to the judgment below and ‘“decide if the evidence [in
support of the judgment] is reasonable, credible and of solid value – such that
a reasonable trier of fact could find that termination of parental rights is
appropriate based on clear and convincing evidence. [Citation].â€â€™
[Citations.]†(
contend that because the finding of adoptability must be based on
finding requires additional scrutiny on appeal.
We disagree. The long-standing rule is that clear and
convincing evidence is the standard for the trial court; it is not a standard
for appellate review. “‘The sufficiency
of evidence to establish a given fact, where the law requires proof of the fact
to be clear and convincing, is primarily a question for the trial court to
determine, and if there is substantial evidence to support its conclusion, the
determination is not open to review on appeal.’
[Citations.]†(
750.) Accordingly, on appeal, “[T]he
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, 1525-1526.) This rule
applies, as elsewhere, on review of a juvenile court’s finding that a child is
adoptable. (Ibid.) In
a different standard of review applies to a determination required to be based
on clear and convincing evidence. A case
is not authority for an issue which it does not address. (People
v. Knoller (2007) 41 Cal.4th 139, 154-155.)
Accordingly, despite the wording employed by the court (
to modify the substantial evidence rule for rulings required to be based on
clear and convincing evidence.
That It Is Likely T.K. Will Be Adopted Within a Reasonable Time.
In
determining whether substantial evidence supports a finding that a dependent
child is likely to be adopted within a reasonable time, “‘[w]e give the court’s
finding of adoptability the benefit of every reasonable inference and resolve
any evidentiary conflicts in favor of affirming.’†(In re
I.I. (2008) 168 Cal.App.4th 857, 869 [Fourth Dist., Div. Two].) Applying this standard, we conclude that the
juvenile court’s finding that it is likely that T.K. will be adopted by his
prospective adoptive parents is supported by substantial evidence.
The report prepared for the section
366.26 hearing stated that T.K. is an engaging child who is very attached to
his prospective adoptive parents and that they are very attached to him and
want to adopt him. However, it also
stated that T.K. had recently begun having severe temper tantrums and eating
and smearing feces and had recently been reported as having some unspecified developmental
delay. The report did not discuss the
prospective adoptive parents’ reaction to these issues. However, because T.K. was living with them
when he began displaying these behaviors and was first reported to have
developmental delays, it is reasonable to infer that the prospective adoptive
parents were aware of these issues.
Nevertheless, according to the report, the prospective adoptive parents
were committed to adopting T.K., and they were suitable adoptive parents. Accordingly, substantial evidence supports
the inference that despite these unfortunate developments, it was likely that
T.K. would be adopted by the prospective adoptive parents within a reasonable
time.
Mother does not appear to contest
that conclusion. Rather, she argues that
the record does not show that the court gave any consideration to whether T.K.
is generally adoptable. She contends
that because of T.K.’s recent behaviors and recent diagnosis as developmentally
delayed, T.K. is not generally adoptable.
She contends that if T.K. is not adopted by his present prospective
adoptive parents, he may become a “legal orphan.â€
“The issue of adoptability posed in
a section 366.26 hearing focuses on the minor,
e.g., whether the minor’s age, physical condition, and emotional state make it
difficult to find a person willing to adopt the minor. [Citations.]
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.]†(In re
Sarah M. (1994) 22 Cal.App.4th 1642, 1649.)
“However, the fact that a prospective adoptive family has been
identified is an indication that the child is likely to be adopted within a
reasonable time. ‘“Usually, 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 individuals from
adopting the minor. In other words, a
prospective adoptive parent’s willingness to adopt generally indicates [that]
the minor is likely to be adopted within a reasonable time either by the
prospective adoptive parent or by some
other family.†[Citation.]’ [Citation.]â€
(In re I.I., supra, 168
Cal.App.4th at p. 870.) Here, the
willingness of the prospective adoptive parents to adopt T.K. supports the
finding of adoptability. Moreover,
“Since it is not even necessary that one prospective adoptive home be
identified before a child may be found adoptable, a fortiori, it is not
necessary that backup families be identified.â€
(Ibid.)
Although at one time it was a
legitimate concern that a child freed for adoption by a current prospective
adoptive parent could end up in legal limbo if the adoption fell through and
some characteristic of the child rendered it unlikely that another adoptive
parent would be found, the Legislature obviated that concern when, in 2005, it
enacted section 366.26, former subdivision (i)(2) (now subd. (i)(3)). (Stats. 2005, ch. 640, § 6.5; see
871.) That subdivision provides, in pertinent part,
“A child who has not been adopted after the passage of at least three years
from the date the court terminated parental rights and for whom the court has
determined that adoption is no longer the permanent plan may petition the
juvenile court to reinstate parental rights pursuant to the procedure
prescribed by Section 388. The child may
file the petition prior to the expiration of this three-year period if the
State Department of Social Services, county adoption agency, or licensed
adoption agency that is responsible for custody and supervision of the child as
described in subdivision (j) and the child stipulate that the child is no
longer likely to be adopted. . . . If it
appears that the best interests of the child may be promoted by reinstatement
of parental rights, the court shall order that a hearing be held
. . . .†Consequently,
the concerns expressed in In re Jayson T.
(2002) 97 Cal.App.4th 75, 91, relied upon by mother, no longer apply.
Mother is deeply critical of the
conduct of this case and expresses a number of legitimate concerns. In particular, she criticizes the belated
discovery of T.K.’s developmental delays, and she criticizes the juvenile court
for finding him adoptable without further inquiry into both T.K.’s sudden
emotional problems and the nonspecific diagnosis of developmental delay. She also points out that when the court
terminated parental rights, the court was apparently under the misapprehension
that T.K. had been placed with his aunt.
However, her contention that the “lack of proper process and the failure
to follow basic dependency statutory guidelines and policy made the evidence
upon which the court relied neither clear nor convincing†(capitalization
normalized), is not persuasive.
First, although mother is correct
that the minor’s attorney represented to the court that T.K. had been placed
with his aunt as a prospective adoptive parent, the social worker’s report
correctly stated that T.K.’s prospective adoptive parents were his foster
parents, with whom he had been placed since May 26, 2011. The court stated that it had read and
considered the social worker’s report.
Accordingly, minor’s counsel’s misstatement does not undermine the
sufficiency of the evidence supporting the court’s ruling.
Next, with respect to the limited
information provided concerning T.K.’s emotional and developmental issues, we
conclude that the record nevertheless establishes that substantial evidence
supported the court’s finding of adoptability.
As we stated above, T.K. was already living with his prospective
adoptive parents when these issues first arose.
Because they were aware of those issues but had not expressed any
reluctance to adopt T.K. because of them, substantial evidence supports the
finding of adoptability.
Mother also contends that the
juvenile court failed to make sufficient efforts to find a relative willing to
adopt T.K. As we have discussed above,
although CFS initially requested initiation of an interstate compact
investigation of the aunt as a potential placement, CFS later informed the
court that the aunt had changed her mind about taking T.K. and reported that
the cousin and unidentified other family members agreed with her that adoption
by the foster parents was the best option for T.K. Section 361.3 requires preferential relative
assessment only for those relatives who request
placement of the child with them. (§ 361.3, subds. (a), (c).) The information presented to the court was
that there were no relatives requesting placement.
Furthermore, section 361.3 places
the burden of identifying potential relative placements on the parent. (§
361.3, subd. (a)(8).) Mother did not
inform the court that, contrary to the report made by CFS, there were in fact
relatives seeking placement. She also
did not challenge what she now objects to as double hearsay, i.e., the social
worker’s report as to what mother’s aunt told her that the other family members
had told her. She had the opportunity to
do so at any of the three hearings held after CFS reported the withdrawal of
the aunt’s request for placement, but she did not do so. Consequently, she has forfeited any claim of
error in this regard. In any event, what
she deems to be the court’s failure to pursue relative placements has no
bearing on the sufficiency of the evidence to support the court’s finding of
adoptability.
Mother also points out that the
social worker’s packet dated May 22, 2012,
erroneously states that T.K. had been placed with his prospective adoptive
parents since July 27, 2010, when T.K. was five months old, and that he had
been with them for the majority of his life.
In fact, T.K. was 15 months old when he was detained and placed with his
prospective adoptive parents on May 26, 2011.
Because the social worker’s recommendation of adoption by the foster
parents is based on this erroneous information, mother contends that the
recommendation does not amount to clear and convincing evidence of
adoptability. However, the report
prepared for the section 366.26 hearing sets forth the accurate information
concerning the date of T.K.’s placement with his foster parents, and it
constitutes substantial evidence supporting the court’s finding of
adoptability.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
McKINSTER
J.
We concur:
HOLLENHORST
Acting
P. J.
CODRINGTON
J.
name="_ftn1" title=""> [1] All statutory citations refer to the Welfare
and Institutions Code.
name="_ftn2" title=""> [2] The disposition report states that T.K. was
very small for his age and that testing for lead poisoning had been done. The result of the test is not reported. The report also states that he appeared to be
developmentally on target, although this later turned out not to be the
case. (See discussion below.)
