William H.
Filed
3/25/13 In re William H. CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
In re WILLIAM H., a Person
Coming Under the Juvenile Court Law.
KERN COUNTY DEPARTMENT OF HUMAN SERVICES,
Plaintiff and Respondent,
v.
SHANNON L.,
Defendant and Appellant.
F065411
(Super.
Ct. No. JD125899)
APPEAL from
a judgment of the Superior Court of
Roni
Keller, under appointment by the Court of Appeal, for Defendant and Appellant.
Theresa A.
Goldner, County Counsel, and Kelli R. Falk, Deputy County Counsel, for
Plaintiff and Respondent.
-ooOoo-
Shannon L.
(mother) appeals from the judgment terminating her parental rights to her son
William, under Welfare and Institutions Code section 366.26,
modification petition. She also contends
that the provisions of the Indian Child
Welfare Act (ICWA) (25 U.S.C., § 1901 et seq.) were not complied
with. We disagree with her contentions
and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
At the time
of William’s birth in November of 2010 in Kern County, he was premature and
placed in intensive care. Shortly
thereafter, he was transferred to UCLA Children’s Hospital, due to an ongoing
heart condition. Mother told a social
worker shortly after William’s birth that she was unable to provide for
him.
January 31, 2011,
Dependency Petition
In January
of 2011, while still in the hospital, William was taken into protective custody
by the Kern County Department of Human
Services (the Department). The
Department filed a section 300 petition, subdivisions (b) and (j), regarding
the minor, alleging that mother had failed to demonstrate an ability to protect
William from domestic violence or to provide a clean and safe home for him;
that she had a history dating back to 2004 of failing to provide a safe home;
that she failed previously to complete ordered classes; that William was
medically fragile and mother did not have the capability of caring for him; and
that she had failed to reunify with two other children.
February 1, 2011,
Detention Hearing
Mother
testified at the detention hearing that her husband, William H., could not be
the father of William, that she was legally separated from him, and that she
did not know who the father of the baby was.
Mother declared that she had no known Indian ancestry. The juvenile court temporarily detained
William and found that ICWA did not apply.
Mother was permitted to visit William consistent with the hospital
visitation policy. William was released
from the hospital three days later.
March 23, 2011,
Jurisdiction Hearing
On March
23, 2011, the juvenile court conducted a jurisdiction hearing and found that William
was a person described by section 300, subdivisions (b) and (j).
June 8, 2011,
Contested Disposition Report and Hearing
The
psychological evaluation of mother done in anticipation of the contested
dispositional hearing reported that mother had joined the Army at age 19 and
while there was “‘[h]it by lightning, fractured the left side of [her] hip, and
caught walking pneumonia … and almost died .…’†The report stated that mother was now
homeless, slept under a bridge, showered every other day at her father’s, and
located and collected recycling for a living.
According to mother, William’s conception was the result of a rape.
The report
further stated that five of William’s older siblings lived with mother’s
mother, who had adopted two of the children and was legal guardian of the other
three. Mother saw these children
regularly on weekends. A sixth older
sibling lived out of town with her father, and mother saw her once a
month. Although mother stated that she
did not trust the Department, she told the psychologist that she had attended
all visits allowed with William, she had completed all of her previously
ordered training and/or counseling, and she planned to look for a job and
residence. Mother told the psychologist
that she had never been involved in mental health treatment and had never taken
mental health medications.
name="_ftnref2" title="">[2]
The
psychologist found mother credible and concluded that she was suffering from
post-traumatic stress disorder, causing her to be angry, fearful and paranoid
of the Department. The psychologist
recommended that the Department assist mother in obtaining a variety of
services and that she be given the opportunity to participate in
reunification.
On June 8,
2011, the Department reported that mother had failed to complete reunification
services in the past, continued to resist mental health treatment, and in the
six months since William was detained had made no progress toward obtaining
housing. Mother also continued to have contact
with her husband, with whom she had a history of domestic violence. The Department recommended that reunification
services with William be denied.
William, who had been diagnosed with a congenital heart defect at birth,
which was corrected with surgery, continued to have trachealmalasia and
required a feeding tube. He was now
living in a foster home appropriate for his medical conditions.
At the
8, 2011, the juvenile court found William was suitably placed out of mother’s
home and reunification services were not offered, pursuant to section 361.5,
subdivision (b)(10) and (11).
name="_ftnref3" title="">[3] Visitation was reduced to one hour a month,
and a section 366.26 termination hearing set.
The county adoption agency was ordered to prepare an assessment of the
child.
December 6, 2011,
Section 366.26 Termination Reports and Hearing
On December
6, 2011, the Department reported that the adoption social worker was actively
“in the process of locating a prospective adoptive placement†for William. Although a potential prospective adoptive
parent had been located out of the county, mother objected.
A
supplemental department report stated that William’s original foster caretaker
had undergone special training to learn how to administer feedings to William,
as he did not take any food or liquid by mouth.
Although William was described as a happy baby, the level of care
required to meet his medical issues was high.
If allowed to cry for any length of time, he developed shortness of
breath and turned blue due to lack of oxygen.
The temperature in the home had to be regulated to maintain his health,
and he received medication through a nebulizer apparatus to help him breathe. William required almost constant monitoring
to insure that he was able to breathe.
He was connected to a continuous feeding tube 22 out of 24 hours a
day.
The
Department originally recommended a plan of legal guardianship for William
because his first caregiver was not committed to adoption. The Department was then in the process of
assessing a new prospective adoptive mother who had a professional medical
background and was dedicated to providing permanency for medically fragile
foster children through a permanent plan of adoption. The Department anticipated a change of
placement soon.
According
to the social worker, between February and June of 2011, mother attended only
eight of the 19 scheduled visits with William.
When she did visit, her visits were appropriate and William responded
positively to her.
At the
termination hearing on December 6, 2011, the juvenile court ordered that all
prior orders remain in full force and effect.
Termination of parental rights in favor of adoption was identified as a
permanent placement goal, but not ordered at the time. The Department was ordered to make efforts to
locate an adoptive home within the next 180 days. Placement out of the county was authorized. A continued section 366.26 hearing was set
for June 4, 2012.
William’s Father
On March 8,
2012, the juvenile court declared William H., Sr., mother’s husband, to be
William’s biological father and ordered visitation. On April 9, 2012, the juvenile court elevated
William H. to presumed father status, but denied his request for reunification
services under sections 361.5, subdivision (b)(10), (11), and (13)
services, but the appeal was dismissed.
May 25, 2012, Section
388 Modification Petition
In May of
2012, mother gave birth to her eighth child and arranged for a private
adoption. Later that month, mother filed
a section 388 petition requesting the return of William to her home or, in the
alternative, reunification services, to allow William to develop a relationship
with his sibling and reunite with mother.
By this time, mother claimed to have completed anger management,
parenting and neglect classes, “Learning to Protect†training, had obtained
counseling, was attending a depression support group, and visited William
regularly.
Modification and Continued Section 366.26 Termination Report and Hearing
In
anticipation of the continued section 366.26 hearing, the Department submitted
an updated adoption assessment, addressing both William and the prospective
adoptive parent’s ability to meet William’s needs. The prospective adoptive mother, with whom
William had resided since December 7, 2011, was 43 years old, divorced, and had
worked as a pediatric registered nurse since 1993. She was currently an in-home care provider. She was in good health and had an annual
income of $100,000. She had two
biological sons, ages 11 and 13, and an adopted son, age 12, who had cystic
fibrosis. She has no criminal
history. She had advocated on William’s
behalf to increase the developmental services provided him by the local
regional center. The prospective
adoptive mother was meeting all of William’s needs, taking him to all
appointments and following doctor recommendations. She showed warmth and affection toward
William, and he appeared to be content and comfortable while being held by
her. She also intended to allow
post-adoption contact with mother as long as it did not pose a risk to
William’s well-being.
Mother was
reported to be participating in mental health services and was under a doctor’s
care; she was drug testing negative; she completed anger management training
and other ordered classes; she had attended all visits with William during the
previous six months and they had gone well, although William did not appear to
relate to his mother as his primary caretaker; and she was cleaning homes and
recycling scrap metal and seeking employment.
Mother was on medication prescribed by a psychiatrist in June of 2012,
and she had scheduled an appointment with an independent therapist. Mother’s divorce from William’s father became
final in May of 2012, and she had a restraining order against him.
The
Department reported that William would be requiring a cardiac catheterization
in the future and possible balloon or stent angioplasty. He had vocal paralysis and upper airway
congestion and needed to use a nebulizer for coughing and shortness of
breath. He was receiving occupational
therapy and was assigned a feeding team to promote assistance with the
transition to taking food by mouth. He
had significantly delayed cognitive development skills, gross motor skills, and
receptive language and expressive language skills.
In a
supplemental report filed on July 24, 2012, the Department reported that
William was now eating some foods, could pull himself up to a standing
position, and could pick up toys and place them in a box. There was a concern that he had a hearing
impairment. His cardiologist was holding
off on heart surgery to place a stint as long as possible. Visits between mother and William continued
to go well. On July 6, 2012, mother
reported to the social worker that the medications she was prescribed by the
psychiatrist made her feel somewhat “off,†and she was not going to take one of
the prescribed medications because she had concerns about it.
The
Department reported that there had been three child protective service
referrals involving the prospective adoptive parent: on January 15, 2008, March
5, 2010, and May 31, 2012.
Investigations found the allegations of each to be unfounded, and the
children found to be not at risk.
At the July
24, 2012, combined section 388 modification and section 366.26 termination
hearing, mother testified that she had completed anger management, parenting
and neglect and learning to protect training, she had completed required
counseling, was seeing a psychiatrist, taking prescribed medication for
depression, and attending a depression suicide support group. She realized that what she had done in the
past was wrong, but felt that she was now mentally and physically able to care
for William. Mother testified that she
was aware of the additional attention William required due to his physical
disabilities, and she had transportation to get William to his medical
appointments. She acknowledged her past
reluctance to work with the Department and was now availing herself of their
services. Mother testified that it would
be in William’s best interest to be placed with her “because I’m his mother.â€
Mother’s
fiancé, whom she met in January of 2012, testified that he lived with mother
and they were engaged. He was committed
to helping care for William, although he had not been with mother at any of her
visits with him. He had raised his own
son through age 12. He was now sober,
although he had committed arson while intoxicated more than nine years
earlier. He had served a prison sentence
for the arson and was compliant with parole and counseling orders.
The
juvenile court denied the section 388 petition and then found, over mother’s
objection, that there was clear and convincing evidence that William was likely
to be adopted and terminated mother’s parental rights, pursuant to section
366.26.
DISCUSSION
I.
TERMINATION OF PARENTAL RIGHTS
Mother
argues that the juvenile court’s adoptability finding was not supported by
clear and convincing evidence. According
to mother, William was improperly and improvidently deemed adoptable in light
of the three child protective service referrals made against the prospective
adoptive mother. We disagree and affirm.
A section
366.26 hearing proceeds on the premise that the efforts to reunify the parent
and child are over, “and the focus of the hearing is on the long-term plan for
care and custody.†(In re Jasmine J. (1996) 46 Cal.App.4th 1802, 1808.) “The court must proceed by section 366.26,
subdivision (c)(1) and terminate parental rights if clear and convincing
evidence shows that it is likely that the minor will be adopted.†(Ibid.) “The adoptability issue at a section 366.26
hearing focuses on the dependent child, e.g., whether his or her age, physical
condition, and emotional state make it difficult to find a person willing to
adopt. [Citation.] It is not necessary that the child already be
in a potential adoptive home or that there be a proposed adoptive parent
‘“waiting in the wings.â€â€™
[Citation.]†(
1311.)
A child is
either “generally†or “specifically†adoptable.
A child is generally adoptable if the child’s traits, e.g., age,
physical condition, mental state, and other relevant factors do not make it
difficult to find a person who will adopt him or her. On the other hand, if a child is deemed
adoptable only because of the caregiver’s willingness to adopt, the child is
specifically adoptable. (See
492-494; In re Carl R. (2005) 128
Cal.App.4th 1051, 1061.)
If a child
is generally adoptable, “the suitability or availability of the caregiver to
adopt is not a relevant inquiry.
[Citations.] Rather, a caregiver’s
willingness to adopt serves as further evidence the minor is likely to be
adopted within a reasonable time either by the caregiver ‘or by some other family.’
[Citation.]†(
pp. 493-494, fn. omitted; see also In re
Carl R., supra, 128 Cal.App.4th at p. 1061.)
Where, as
here, the child is specifically adoptable because of a particular family’s
willingness to adopt the child, the trial court must determine whether there is
a legal impediment to adoption. (
p. 1061.) In re Carl R. found that a “child who is specifically adoptable and
who will need total care for life is at high risk of becoming a legal orphan if
parental rights are terminated and the prospective adoptive family is later
determined to be unsuitable.†(
whether there is a legal impediment to adoption; the court must consider
whether the prospective adoptive parents can meet the child’s needs. (Ibid.)
We apply
the substantial evidence test to the dependency court’s finding that the minor
is adoptable. Our task is to determine
whether there is substantial evidence from which a reasonable trier of fact
could find, by clear and convincing evidence, that the minor is adoptable. “The appellant has the burden of showing
there is no evidence of a sufficiently substantial nature to support the
finding or order.†(In re R.C., supra, 169 Cal.App.4th at p. 491.)
We disagree
with mother’s assertion that there was insufficient evidence that William was
specifically adoptable by his current caregiver. The prospective adoptive mother, with whom
William had resided for seven months, was a 43-year-old former pediatric nurse
who now worked as an in-home care provider.
She was in good health; had an annual income of $100,000; cared for her
two biological sons, ages 11 and 13, and an adopted son, age 12, who had cystic
fibrosis. The prospective mother was
meeting all of William’s special medical needs and he was making progress. She was taking him to all appointments,
following doctor’s recommendations, and advocating on William’s behalf to
increase his developmental services. The
prospective adoptive mother showed William warmth and affection, and he
appeared content and comfortable with her.
Mother
makes much of the three child protective service referrals on the prospective
adoptive mother. But all three
referrals, which took place in January 2008, March 2010,
to be unfounded and the children found not to be at risk. We will not speculate, as mother does, that
since the allegations in the referrals involved the prospective adoptive
mother’s adopted son, mother might also have difficulty with William as he gets
older.
We find
that the juvenile court’s finding that there was clear and convincing evidence
that William was likely to be adopted was supported by substantial evidence,
and we reject mother’s claim to the contrary.
II.
DENIAL OF MODIFICATION PETITION
Mother contends that the
juvenile court abused its discretion in denying her section 388 petition
requesting reunification services and placement of William with her. We disagree.
A parent
may petition the juvenile court to change, modify, or set aside any previous
order made in the dependency proceeding based on changed circumstances. (§ 388, subd. (a); In re Marilyn H. (1993) 5 Cal.4th 295, 305.) But, “[i]t is not enough for a parent to show
just a genuine change of
circumstances under the statute.†(
519, 529.) The parent must show that the
undoing of the prior order would be in the best interests of the child at the
time the request is made. (
317-318.)
A juvenile
court’s denial of a section 388 petition is reviewed under an abuse of
discretion standard. (
p. 318.) “‘“The appropriate test for
abuse of discretion is whether the trial court exceeded the bounds of
reason. When two or more inferences can
reasonably be deduced from the facts, the reviewing court has no authority to
substitute its decision for that of the trial court.â€â€™ [Citations.]â€
(Id. at pp. 318-319.)
Mother
testified at the July 24, 2012, section 388 hearing that she had completed
anger management, parenting, neglect and learning to protect training, and she
was now taking responsibility for her past actions. But, as the Department noted, she had only
begun to address her mental health issues, having attended just one documented
therapy session at that point. And while
she had been prescribed and was taking psychotropic medication for one month
prior to the hearing, she expressed concerns about one drug and contemplated
stopping it. Mother was now living with
a boyfriend, a recovering alcoholic with a criminal history. Although he claimed to want to help mother
raise William, he had never met him. At
this point, William was 20 months old.
He had never lived with mother, mother had never provided care for him
outside of the ordered supervised monthly visits, and she had never attended
any of his doctor’s appointments.
The
prospective adoptive mother, with whom William had resided for over seven
months, had shown her commitment to William and her ability to meet William’s
needs. William was doing well in the
caregiver’s home. In fact, mother had
told the social worker after William had been in the prospective adoptive
mother’s home for six months that the prospective adoptive mother was “‘good
with William’†and that “‘she could take better care of him than I
would.’†(Italics omitted.)
In denying
mother’s section 388 petition, the juvenile court stated that, although mother
“is genuine in her efforts and has made some steps in the right direction,â€
those steps “have not added up to accomplishing changed circumstances,†and it would not be in the best interest of
the child to be with mother.
While
mother demonstrated her circumstances were changing, the question was whether
those changes were significant to demonstrate that removing William from a
stable placement and giving mother time in which to reunify with William would
be in William’s best interest. (
1446, 1451.) We agree with the juvenile
court that mother failed to demonstrate that William’s best interest would be
served by the requested changes. We thus
find no abuse of discretion in denying mother’s section 388 petition.
III.
ICWA COMPLIANCE
Mother
contends finally that ICWA was violated because no ICWA inquiry was made as to
William H. after he was elevated to presumed status. The Department contends that it complied with
ICWA’s inquiry requirements as to mother and that no notice was required, but
concedes that, as to father, the inquiry requirements of ICWA were not
met. Nevertheless, the Department argues
that the error was harmless because father did not claim Indian heritage in the
juvenile court, he did not claim such on appeal, and that the finding that ICWA
did not apply to father had previously been made in father’s other dependency
cases. We agree that, to the extent the
juvenile court did not comply with ICWA inquiry requirements as to father, any
such error was harmless.
ICWA
protects the interests of Indian children and promotes the stability and
security of Indian tribes by establishing minimum standards for, and permitting
tribal participation in, dependency actions.
(25 U.S.C. § 1901 et seq.; In
re Holly B. (2009) 172 Cal.App.4th 1261, 1266.) If there is reason to believe a child who is
the subject of a dependency proceeding is an Indian child, ICWA requires that
the child’s Indian tribe be notified of the proceeding and its right to
intervene. (25 U.S.C. § 1912(a);
§ 224.3, subd. (b).) A social
worker who knows or has reason to know the child is Indian “is required to make
further inquiry regarding the possible Indian status of the child, and to do so
as soon as practicable, by interviewing the parents, Indian custodian, and
extended family members to gather information†required to be provided in the
notice. (§ 224.3, subd. (c).)
Mother
claims ICWA was violated because no ICWA inquiry was made as to William H.
after he was elevated to presumed father status. While it is true that an inquiry was not made
on April 9, 2012, the one court appearance William H. attended after
establishing his paternity, the juvenile court had before it information that
father did not have Indian heritage. The
Department report prepared in anticipation of mother’s jurisdiction hearing
March 23, 2011, stated that, in a previous dependency case involving mother and
William’s daughter Sylvia, the juvenile court found that ICWA did not
apply. At the jurisdiction hearing, the
juvenile court took judicial notice of the case files involving five of William
H.’s other children, including Sylvia (case No. JD116309). In addition, in the Department report filed
in anticipation of the July 24, 2012, section 366.26 termination hearing, the
social worker stated that, according to a health and family questionnaire sent
to William H. on July 12, 2011, he had stated that he had no known Native
American heritage.
These facts
and circumstances establish, to the extent, if any, that the inquiries made
were inadequate, any error was harmless.
(In re H.B. (2008) 161
Cal.App.4th 115, 122; In re Rebecca R.
(2006) 143 Cal.App.4th 1426, 1431.)
DISPOSITION
The
judgment is affirmed.
_____________________
Franson, J.
WE CONCUR:
_____________________
Levy, Acting P.J.
_____________________
Gomes, J.
name="_ftn1" title="">[1] All
further statutory references are to the Welfare and Institutions Code unless
otherwise stated.
name="_ftn2" title="">[2] In
a psychological evaluation conducted in connection with a 2008 dependency
matter, another psychologist reported a diagnosis of bipolar disorder. At that time, mother reported a history of
mental health services throughout her life and attempted suicide in 1994, but
that she was not involved in mental health services nor was she taking
psychotropic medication at that time.
According to mother, she was able to control her symptoms by “going to
church and dancing.â€
