In re S.S. CA4/1 ( 2021 )

Filed 3/29/21 In re S.S. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
COURT OF APPEL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re S.S. et al., Persons Coming
Under the Juvenile Court Law.
D078027
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY,
(Super. Ct. No. NJ15434B-E)
Plaintiff and Respondent,
v.
G.S. et al.,
Defendants and Appellants.
1
APPEAL from orders of the Superior Court of San Diego County,
Michael Imhoff, Commissioner. Affirmed.
Suzanne Davidson, under appointment by the Court of Appeal, for
Defendant and Appellant G.S.
Jacob I. Olson, under appointment by the Court of Appeal, for
Defendant and Appellant E.S.
Office of County Counsel, Caitlin E. Rae, Chief Deputy County Counsel,
and Jesica N. Fellman, Senior Deputy County Counsel, for Plaintiff and
Respondent.
G.S. (Father) and E.S. (Mother) appeal orders of the juvenile court
terminating their parental rights to their four children and selecting
permanent plans of adoption for them pursuant to Welfare and Institutions
Code section 366.261 after finding that the children are adoptable. On
appeal, Father contends, and Mother joins in his contention, that there is
insufficient evidence to support the court’s finding, by clear and convincing
evidence, that the children are adoptable.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and Father have four children together, daughters Sn. S. and
St. S., born in 2015 (the twins), daughter A.S., born in 2017 (youngest
daughter), and son G.S., born in 2018 (son).2 In August 2018, the San Diego
1 All statutory references are to the Welfare and Institutions Code.
2 Mother has an older son, J., born in 2013, from a different relationship
who is not a subject of this appeal.
2
County Health and Human Services Agency (Agency) received a report that
Mother and her son tested positive for methamphetamines at the time of his
birth. Mother admitted she used methamphetamines twice a week since
January 2018 after Father was deported. Prior to the son’s birth, the Agency
had received reports stating concerns about the older children’s hygiene and
the condition of the family home, and the Agency’s investigations showed the
home was infested with cockroaches, gnats, and animal feces and urine.
During an August 2018 home visit, the Agency found the older children’s
teeth were broken and yellow and they had rashes, which were later
determined to be bed bug bites, scabies, and lice.
In August 2018, the Agency filed a section 300, subdivision (b),
dependency petition for each child, alleging that the child had suffered, or
there was a substantial risk that the child would suffer, serious physical
harm or illness as a result of the parents’ failure or inability to supervise or
protect the child adequately. At the children’s detention hearing, the court
found the Agency had made a prima facie showing in support of the petitions
and detained the children out of the home in a confidential foster home.
At the October 2018 jurisdiction hearing, the court made true findings,
by clear and convincing evidence, on the petitions’ allegations and ordered
that it had jurisdiction over the children. At the December contested
disposition hearing, the court removed the children from their parents’
custody and placed them in the foster home. It also ordered the Agency to
provide the parents with reunification services and set a six-month review
hearing.
In its six-month review hearing report, the Agency stated that the
children were thriving in their placement and had made significant progress
3
in their development and health. The three daughters had been successfully
treated for lice and scabies and their skin rashes had healed. Their behavior
was notably less aggressive and “much nicer.” In particular, the youngest
daughter, who was described as traumatized and fearful when she was first
placed in foster care, was becoming confident and secure and had learned
how to self-soothe. The children appeared bonded to their foster parents. In
April 2019, the children’s case liaison from Voices for Children reported that
the children had multiple behavioral and developmental concerns and had
been recommended for comprehensive developmental evaluations. Multiple
services, including trauma therapy, were recommended for the children, and
they were receiving those services. Both the Agency social worker and the
foster mother had observed significant progress in the children’s behavior
and functioning since their initial placement in foster care and receipt of
services.
Prior to the six-month review hearing, the Agency learned that Father
had been taken into federal custody and it was unclear how long he would be
in custody. While in custody, Father stated that after his release, he would
not be returning to California and was not interested in pursuing
reunification with the children. Mother failed to participate in reunification
services or make any progress in her case plan and had only sporadic contact
with the children. Accordingly, the Agency recommended that the parents’
reunification services be terminated and that a section 366.26 permanency
planning hearing be set.
At the contested July 2019 six-month review hearing, the court found,
by clear and convincing evidence, that there would be a substantial risk of
detriment to the children’s physical and emotional well-being if they were
returned to their parents. The court further found there was not a
4
substantial probability the children would return to their parents’ custody by
the date of the permanency hearing. Based on those findings, the court
ordered that the parents’ reunification services be terminated and it set a
section 366.26 hearing date.
In August 2019, the foster parents, who had cared for the children for
about one year, informed the Agency that they were unwilling to adopt all
four children and wanted to adopt only the son. At an October child and
family team (CFT) meeting, the Agency informed the foster mother that it
would begin adoption recruitment efforts to find a permanent home willing to
adopt all four children.
In January 2020, the foster parents filed a de facto parent request and
stated they sought to adopt only the son because of the high needs of all four
children and the son needed specialized care with all-day monitoring. Also in
January, the Agency located a potential adoptive placement for all four
children and began facilitating in-person visits between the children and the
prospective adoptive parents. In February, the Agency placed the children
with the prospective adoptive parents. The prospective adoptive mother was
extremely affectionate toward the children. Shortly after the children’s
placement, their former foster parents filed an amended de facto parent
request and stated they sought to adopt all four children. The former foster
parents also filed a section 388 petition, requesting that the children be
returned to their care. However, the Agency remained concerned that the
former foster parents were not truly committed to adopting all four children
or able to meet their needs.
At the February 2020 section 366.26 hearing, Mother and Father
requested a contested hearing, which the court set to be heard concurrently
5
with the former foster parents’ de facto parent request and section 388
petition. The court also authorized monthly visits between the children and
their former foster parents. Father informed the Agency that he had been
released from custody, was living in Mexico, opposed the children’s adoption,
and wanted to care for them himself. However, Father had minimal contact
with the Agency and had not shown he had completed his case plan services.
During their virtual visits with Father, the children seemed disinterested,
did not remain engaged, and would walk away.
In July 2020, the Agency received a referral from the Foster Family
Agency (FFA) social worker, expressing concerns about the prospective
adoptive placement. The social worker reported that the prospective adoptive
father yelled at the children and was too strict and the home was messy.
Based on that report, the FFA gave the Agency a 14-day notice to move the
children, and the Agency then began assessing other available adoptive
placements for the children. At that time, placement with the former foster
parents was not an option because their resource family approval (RFA) was
on hold due to allegations of child neglect.
In August 2020, the Agency located new prospective adoptive parents
for the children. They had seen the children during the Agency’s previous
adoption recruitment efforts and began the RFA evaluation process shortly
thereafter. The children had remained on their minds since then. They had
previous foster care experience and had always wanted to adopt. The new
prospective adoptive mother was a stay-at-home parent, who was a trained
speech pathologist and had been a preschool teacher for several years. She
grew up with seven siblings and her parents lived in the area and were
available to help as the children adjusted to their new home. The new
6
prospective adoptive father worked from home and planned to take time off
as the children acclimated to their new home.
In early September 2020, the Agency placed the children with the new
prospective adoptive parents. The children appeared happy and comfortable
with their new placement and did not want to return to the former foster
parents. During two subsequent home visits, the Agency social worker found
the new prospective adoptive parents to be committed to adoption and were
open to suggestions and interventions to help them with the children’s
trauma.
In late September 2020, the court held a concurrent hearing on the
former foster parents’ section 388 petition and request for de facto parent
status and the children’s section 366.26 permanency planning issues. Father
joined in the former foster parents’ section 388 petition in which they
requested placement of the children with them. The former foster mother
testified that the children were extremely traumatized when they were
initially placed in her home in August 2018. She testified that the children
initially required medical, psychiatric, and special services, but had made
progress after receiving those services. She testified that while she and the
former foster father had initially planned to adopt only the son, they changed
their minds in January 2020 and wanted to adopt all four children.
Father testified that he wanted the children returned to the former
foster parents and felt the children had acted differently toward him during
their two prospective adoptive placements. If his parental rights were
terminated, he hoped to have continued contact with the children.
In her stipulated testimony, Agency social worker Candace M. stated
she had no concerns about the former foster parents’ care of the children
7
when she conducted monthly home visits from September 2018 through
December 2018. In the stipulated testimony of another Agency social worker,
Jessica C., there was no longer a hold on the former foster parents’ RFA
evaluation. The court also admitted in evidence, among other documents, the
Agency’s section 366.26 report and addenda thereto in which the Agency
opined the children were adoptable and recommended that the court find the
children were adoptable and select adoption as their permanent plans.
After considering the witnesses’ testimony, the Agency’s reports, and
other documentary evidence and hearing arguments of counsel, the court first
denied the former foster parents’ section 388 petition seeking return of the
children to their care. In so doing, the court found it was not in the children’s
best interests to change placements again. Nevertheless, the court granted
their request for de facto parent status.
As to the section 366.26 permanency planning issues, the court found,
by clear and convincing evidence, that the children were likely to be adopted.
It noted that in the three weeks the children had been placed with the new
prospective adoptive parents, the children had undergone a transformation
where they felt comfortable and safe and secure in that home. The court also
noted the new prospective adoptive parents’ continuing commitment to adopt
the children. Finding no legal impediment to the children’s adoption and
none of the exceptions to termination of parental rights applied, the court
terminated Mother’s and Father’s parental rights and selected adoption as
the children’s permanent plans.
Mother and Father timely filed notices of appeal challenging the court’s
section 366.26 orders.
8
DISCUSSION
I
Adoptability under Section 366.26 Generally
When there is no probability that a child will be reunified with a parent
and reunification services have been terminated, the juvenile court must
conduct a section 366.26 hearing and select a permanent plan for the child.
(In re Celine R. (2003) 31 Cal.4th 45, 52.) "The court has four choices at the
[section 366.26] permanency planning hearing. In order of preference the
choices are: (1) terminate parental rights and order that the child be placed
for adoption . . . ; (2) identify adoption as the permanent placement goal and
require efforts to locate an appropriate adoptive family; (3) appoint a legal
guardian; or (4) order long-term foster care." (Id. at p. 53.) Adoption is the
preferred permanent plan. (In re Valerie A. (2007) 152 Cal.App.4th 987, 997;
In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) The juvenile court does not
consider other permanent plans unless and until adoption has been rejected.
(§ 366.26, subd. (b)(1)-(7); In re Tabatha G. (1996) 45 Cal.App.4th 1159,
1164.)
At a section 366.26 hearing, the juvenile court, in selecting a
permanent plan for a dependent child of the court, must determine whether
Agency has shown, by clear and convincing evidence, it is likely the child will
be adopted and, if so, then terminate parental rights and order the child
placed for adoption. (§ 366.26, subd. (c)(1).) In making that finding, the court
must consider the Agency's adoption assessment report and any other
relevant evidence. (§ 366.26, subd. (c)(1).) "The juvenile court may terminate
parental rights only if it determines by clear and convincing evidence that it
is likely the child will be adopted within a reasonable time." (In re Carl R.
9
(2005) 128 Cal.App.4th 1051, 1060 (Carl R.).) "[W]hat is required is clear and
convincing evidence of the likelihood that the [child] will be adopted within a
reasonable time either by the prospective adoptive family or some other
family." (In re Scott M. (1993) 13 Cal.App.4th 839, 844.)
Although the court need not find a child to be “generally” or
“specifically” adoptable (In re Mary C. (2020) 48 Cal.App.5th 793, 802),
evidence showing that a child is either specifically adoptable or generally
adoptable may support a finding that the child is likely to be adopted within
a reasonable time. (In re A.A. (2008) 167 Cal.App.4th 1292, 1313; In re Sarah
M. (1994) 22 Cal.App.4th 1642, 1651 (Sarah M.).) "The question of
adoptability posed at a section 366.26 hearing usually focuses on whether the
child's age, physical condition, and emotional state make it difficult to find a
person willing to adopt that child. [Citation.] If the child is considered
generally adoptable, we do not examine the suitability of the prospective
adoptive home." (Carl R., supra, 128 Cal.App.4th at p. 1061.) "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 the minor is likely to be adopted
within a reasonable time either by the prospective adoptive parent or by some
other family." (Sarah M., supra, at pp. 1649-1650.) The presence or absence
of a proposed adoptive family is only one factor to be considered by the court.
(In re David H. (1995) 33 Cal.App.4th 368, 378.) If, however, a child is found
adoptable based solely on a particular family’s willingness to adopt (i.e., the
child is specifically adoptable), the court must find whether there is any legal
impediment to adoption and whether the prospective adoptive parents can
10
meet the child’s needs. (Carl R., supra, at p. 1061; In re J.W. (2018) 26
Cal.App.5th 263, 268.)
On appeal from an order finding a child is likely to be adopted within
the meaning of section 366.26, we apply the substantial evidence standard of
review. (In re B.D. (2008) 159 Cal.App.4th 1218, 1232; In re Jennilee T.
(1992) 3 Cal.App.4th 212, 223-224.) In determining whether there is
substantial evidence to support a finding or order, "[w]e do not evaluate the
credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts.
Rather, we draw all reasonable inferences in support of the findings, consider
the record most favorably to the juvenile court's order, and affirm the order if
supported by substantial evidence even if other evidence supports a contrary
conclusion." (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.) The appellants
challenging that finding bear the burden on appeal to show there is
insufficient evidence to support the court's findings and orders. (Ibid.; In re
D.M. (2012) 205 Cal.App.4th 283, 291.) In determining whether there is
substantial evidence to support the court’s finding by clear and convincing
evidence, we determine whether the record as a whole contains “substantial
evidence from which a reasonable trier of fact could have made the finding of
high probability demanded by this standard of proof.” (In re Conservatorship
of O.B. (2020) 9 Cal.5th 989, 1005.)
II
Substantial Evidence Support the Court’s Adoptability Findings
Father contends, and Mother joins in his contention, that there is
insufficient evidence to support the juvenile court’s finding at the section
366.26 hearing that the children are likely to be adopted within a reasonable
time. He argues the children had severe behavioral and emotional issues
11
that required extensive services, which needs made it unlikely they would be
adopted within a reasonable time.
Based on our review of the record, we conclude there is substantial
evidence to support the juvenile court’s finding, by clear and convincing
evidence, that each of the four children is likely to be adopted within a
reasonable time. In particular, there is substantial evidence to support an
implied finding by the court that the children are generally adoptable. The
Agency opined the children were adoptable and recommended that the court
find the children were adoptable. The children’s current prospective adoptive
parents had shown consistent interest in adopting the children since they
initially saw the children during the Agency’s previous adoption recruitment
efforts and began the RFA evaluation process shortly thereafter. By the time
of the section 366.26 hearing in late September 2020, the children had been
placed with the current prospective adoptive parents for about three weeks
and appeared happy and comfortable with their new placement. During two
subsequent home visits, the Agency social worker found the current
prospective adoptive parents to be committed to adoption and were open to
suggestions and interventions to help them with their trauma. Furthermore,
the former foster parents were interested in adopting all four children since
February 2020 (after previously expressing interest in adopting only the son),
which interest was demonstrated by their section 388 petition and request for
de facto parent status. By the time of the section 366.26 hearing, the former
foster parents’ RFA evaluation was no longer on hold. Finally, the original
prospective adoptive parents were interested in adopting the children at the
time of their February 2020 placement with them and thereafter and
presumably continued to be interested in adopting them even after the
12
children were removed from them in early September 2020 after the FFA
referral.
Given the ample evidence that at least three different sets of parents
were interested in adopting the children at the time of the section 366.26
hearing and that the Agency opined that they are adoptable, we conclude
there is substantial evidence to support a finding, by clear and convincing
evidence, that the children are generally adoptable and therefore that it is
likely each of the four children will be adopted within a reasonable time. (In
re A.A., supra, 167 Cal.App.4th at p. 1313; Sarah M., supra, 22 Cal.App.4th
at p. 1651.) Specifically, the fact that not only the current prospective
adoptive parents, but also the former foster parents and the previous
prospective adoptive parents, are interested in adopting all four children
shows that the children are generally adoptable. As stated above, "a
prospective adoptive 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." (Sarah M., supra, at
pp. 1649-1650.) Because there is substantial evidence to support a finding
that the children are generally adoptable, we need not “examine the
suitability of the prospective adoptive home" or determine whether there is
substantial evidence to support an alternative finding that the children are
specifically adoptable. (Carl R., supra, 128 Cal.App.4th at p. 1061.)
Nevertheless, assuming arguendo that there is insufficient evidence to
support a finding of general adoptability, we conclude there is substantial
evidence to support a finding, by clear and convincing evidence, that the
children are specifically adoptable. In particular, there is substantial
evidence to support a finding that there is no impediment to adoption of the
children by the current prospective adoptive parents and that they could
13
meet the children’s needs. (Carl R., supra, 128 Cal.App.4th at p. 1061; In re
J.W. (2018) 26 Cal.App.5th 263, 268.) As discussed above, the current
prospective adoptive parents had a continuing interest in adopting the
children since first seeing them during the Agency’s previous adoption
recruitment efforts and began the RFA evaluation process shortly thereafter.
They had previous foster care experience and had always wanted to adopt.
Importantly, the current prospective adoptive mother was a stay-at-home
parent, who was a trained speech pathologist and had been a preschool
teacher for several years, making her especially suitable to care for the four
young children. She grew up with seven siblings and her parents were
available to help as the children adjusted to their new home. Also, the
current prospective adoptive father worked from home and planned to take
time off as the children acclimated to their new home. Furthermore, after the
children’s placement with them in early September 2020, the children
appeared happy and comfortable with their new placement and did not want
to return to the former foster parents. During two subsequent home visits,
the Agency social worker found the current prospective adoptive parents were
committed to adopting the children and open to suggestions and
interventions to help them with their trauma. Finally, the record does not
indicate there is any legal impediment to adoption of the children by the
current prospective adoptive parents. Based on the above evidence, we
conclude there is substantial evidence for a finding, by clear and convincing
evidence, that the children are specifically adoptable and therefore that it is
likely each of the four children will be adopted within a reasonable time. (In
re A.A., supra, 167 Cal.App.4th at p. 1313; Sarah M., supra, 22 Cal.App.4th
at p. 1651.)
14
Contrary to Father’s assertion, the fact that the children had
behavioral and emotional problems on their initial placement with the former
foster parents in August 2018 does not show they are not adoptable within a
reasonable time. As discussed above, after their initial placement, the
children soon bonded to their former foster parents and the children began
receiving multiple services, including trauma therapy, for their behavioral
and developmental issues. Both the Agency social worker and the former
foster mother observed significant progress in the children’s behavior and
functioning after their initial placement and receipt of services. Father has
not cited any evidence in the record showing that, at the time of the section
366.26 hearing in September 2020, that the children’s behavioral and
emotional problems (e.g., bonding, attachment, and trauma-related issues)
and/or needs for services are so significant that they precluded a finding that
the children are either generally or specifically adoptable and therefore likely
to be adopted within a reasonable time. (Cf. In re R.C. (2008) 169
Cal.App.4th 486, 492 [possibility of future problems did not make child
unadoptable].) In particular, he has not shown that the current prospective
adoptive parents (or, for that matter, the former foster parents or previous
prospective parents) are unwilling or unable to meet the children’s needs or
that there is any legal impediment to their adoption of the children. To the
extent Father cites evidence and/or draws inferences from the evidence that
would have supported a contrary finding by the court, he misconstrues and/or
misapplies the substantial evidence standard of review. (In re L.Y.L., supra,
101 Cal.App.4th at p. 947; In re D.M., supra, 205 Cal.App.4th at p. 291.)
Furthermore, contrary to Father’s assertion, the fact that the children
had been placed with the current prospective adoptive parents for only three
weeks at the time of the section 366.26 hearing or that the children are part
15
of a large sibling set does not show the children are not generally or
specifically adoptable and therefore not likely to be adopted within a
reasonable time. As discussed above, the evidence showing that at least
three sets of parents are interested in adopting the children supports a
finding that the children are generally adoptable. Even if the children had
not been placed with any of those parents at the time of the section 366.26
hearing, there would still be substantial evidence to support a finding of their
adoptability based on those parents’ expressed interest in adopting the
children. Furthermore, given the strong evidence of the current prospective
adoptive parents’ interest in adopting the children and the current
prospective mother’s special suitability to care for the children with their
particular needs, there is substantial evidence to support a finding that the
children are specifically adoptable regardless of the length of the children’s
placement with the current prospective adoptive parents. To the extent
Father cites evidence and/or draws inferences from the evidence that would
have supported a contrary finding by the court, he misconstrues and/or
misapplies the substantial evidence standard of review. (In re L.Y.L., supra,
101 Cal.App.4th at p. 947; In re D.M., supra, 205 Cal.App.4th at p. 291.)
16
DISPOSITION
The orders are affirmed.
HALLER, J.
WE CONCUR:
McCONNELL, P. J.
O'ROURKE, J.
17