In re Michael M. CA2/4 ( 2014 )

Filed 5/15/14 In re Michael M. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re Michael M. et al., Persons Coming
Under the Juvenile Court Law.
B250413
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN AND Super. Ct. No. CK83150)
FAMILY SERVICES,
Plaintiff and Respondent,
v.
JERRY M.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County,
Marilyn Mordetzky, Judge. Affirmed.
Lori A. Fields, under appointment by the Court of Appeal, for Defendant
and Appellant.
John F. Krattli, Office of the County Counsel, James M. Owens, Assistant
County Counsel and Navid Nakhjavani, Deputy County Counsel, for Plaintiff and
Respondent.
Appellant Jerry M. (Father) appeals the juvenile court’s order under Welfare
and Institutions Code section 366.26, terminating his parental rights and freeing his
five children for adoption by the A.’s, the foster family who had been caring for
them and had committed to adopting them all.1 Father contends substantial
evidence does not support the court’s finding of adoptability. We affirm the
court’s order.
FACTUAL AND PROCEDURAL BACKGROUND
This case involves the five children of Father and J.A. (Mother): S born in
2006, Troy born in 2007, Kylie born in 2008, Kayla born in 2009, and Michael M.
(Michael) born in 2010. The four older children were detained in July 2010.
Michael was detained shortly after his birth in November 2010. The court
ultimately found true that the Mother had a history of substance abuse which
rendered her incapable of providing regular care of the children, that Mother
needed mental health treatment, and that Mother and Father had engaged in a
serious domestic altercation.2
After the 2010 detention, the children were initially placed in three different
foster homes. Kylie and Michael were placed in the home of Virginia M. S and
Troy were placed with the A.’s. Kayla, who initially was placed in a separate
home, was transferred to the A.’s home in 2011. The children received good care
in their respective foster homes.3
1
Undesignated statutory references are to the Welfare and Institutions Code.
2
At the time of the original detention, Father was incarcerated for assaulting
Mother.
3
In September 2011, the A.’s expressed their desire to be considered for the
permanent placement of all five children. A Court-Appointed Special Advocate (CASA)
for S and Troy agreed this could be “the best possible option.”
2
A Multidisciplinary Assessment Team (MAT) evaluated the four older
children early in the proceedings.4 S was found to be emotionally volatile and
aggressive toward his siblings. Troy cried excessively for his age. Kylie and
Kayla showed no signs of mental health problems, but were nonetheless provided
early start services through the Los Angeles Regional Center (Regional Center).5
In November 2011, when she turned three, Kylie was terminated from the
Regional Center because she had none of the requisite disabilities. She was
psychologically evaluated and was found to suffer from “[d]isruptive [b]ehavior
[d]isorder,” which meant that she engaged in “frequent temper tantrums, but also
was found to be “unusually bright.” A similar evaluation found that Kayla, then
nearly two, had significant delays in receptive and expressive language skills. S,
then five, was described as immature for his age, but having no apparent deficits in
behavior or learning abilities. Troy, evaluated shortly before he turned four, was
found to possess skills within the functional limits for his age.
The parents were provided reunification services, but made little progress
during the reunification period. In October 2011, the court terminated Mother’s
reunification services. A few months later, it terminated Father’s reunification
services.6
4
Michael was too young to be evaluated. In early 2011, when he was four months
old, he began to display seizure-like shaking. The condition, which may have been the
result of Mother’s drug use during pregnancy, resolved itself over time.
5
The Regional Center is a private nonprofit community-based organization which
contracts with the State Department of Developmental Services to coordinate services for
individuals with developmental disabilities. (See Lanterman Developmental Disabilities
Services Act (§ 4500, et seq.); Morohoshi v. Pacific Home (2004) 34 Cal. 4th 482, 486.)
6
In March 2012, Father was arrested for corporal injury on a spouse/cohabitant for
assaulting his pregnant girlfriend. He was transferred to a detention facility to await
deportation. By the time of the section 366.26 hearing, he was back in the area.
3
In March 2011, the caseworker had undertaken a preliminary adoption
assessment. The A.’s expressed willingness to adopt S, Troy, and Kayla, the three
children then in their care. Kylie’s and Michael’s foster mother, Virginia M.,
expressed willingness to adopt them.7 In March 2012, however, Kylie and Michael
were removed from Virginia’s home due to a child abuse referral. They were
placed in a new foster home with the C.’s.8
In July 2012, the four older children were in good physical health.9 S, then
almost six, was meeting his developmental milestones. Troy, then four, was
meeting developmental milestones and was receiving speech therapy. He had
occasional episodes of bedwetting. Kayla, two and a-half, had significant speech
and expressive language delays, and was participating in speech therapy twice
weekly. Kylie, three, was developing appropriately, but the diagnosis of disruptive
behavior disorder had not changed. Her caregivers, the C.’s, reported that she
continued to have temper tantrums and angry outbursts.10
During July 2012, the A.’s asked that the children in their care be provided
counseling services because S and Troy fought with each other every day and were
7
The Department of Children and Family Services (DCFS) also had explored other
options. In November 2011, the caseworker ordered an ICPC (Interstate Compact on the
Placement of Children) investigation of a maternal aunt who lived in Georgia and had
expressed interest in adopting the children. Subsequently however, the aunt informed the
caseworker that she had been laid off from her job and did not have a place for them.
8
When the necessity of moving Kylie and Michael arose, the A.’s expressed
interest in having all five children in their care, but the rules governing their foster care
program prevented them from having additional children under the age of three in their
home. The children’s CASA had recommended that they be placed with the A.’s in
2011.
9
Michael, evaluated a few months later, was meeting his developmental milestones.
10
The C.’s advised the caseworker that due to Kylie’s outbursts, they wished to have
Kylie and Michael placed elsewhere.
4
physically aggressive at school.11 In addition, all three of the children were
engaging in destructive behavior, ripping up clothing, blankets and pillows, and
Kayla was self-abusive, pulling her own hair and making her nose bleed. Despite
these experiences, the A’s. were committed to adopting the three children, to
having the other two children placed in their home, and to eventually adopting all
five. The A.’s reported they had come to know all the children through sibling
visits. They stated that they cared deeply for and were attached to the children and
could provide them with a permanent and loving home. The caseworker reported
that S, Troy and Kayla were doing well in the A.’s care and had bonded with them,
and that the A.’s adoptive home study had been approved. Later that month, the
A.’s received an exemption that allowed Michael and Kylie to be placed in their
home.
After being reunited in the home of the A.’s, the children began therapy with
Raul Lara, M.F.T. The caseworker reported that the children and the A.’s seemed
to be adjusting well and “building a solid relationship with one another.” She
described the children as “social and friendly” and said they were excited to live
and play together on a daily basis. The A.’s initially reported no concerns, said the
children were doing “‘great,’” and continued to express a commitment to providing
a permanent home for all five children. In October 2012, however, certain
behavioral issues caused the A.’s to waver about going forward with adoption.12
They said dealing with all five children and their individual problems was
sometimes “overwhelming.” They expressed concern about receiving support after
11
The A.’s reported that when S got into fights with his siblings, they were able to
redirect him.
12
Among other things, Kylie reacted badly when disciplined. Despite therapy,
Kayla continued to have serious speech development issues.
5
DCFS and the court ceased being involved. The caseworker held a team decision
meeting (TDM) with the A.’s to inform them of the long term support available to
adoptive parents. In November 2012, after the TDM, the A.’s re-confirmed their
commitment to adopting all five children.
In April 2013, a month before the section 366.26 hearing, the children’s
therapist reported that he had observed the children displaying aggressive behavior
toward each other and toward their caretakers. He had also observed “a lot of
verbal and physical expression of affection and caring from the foster mother
towards the . . . children, and towards the foster mother from the . . . children.” He
diagnosed the children as suffering from generalized anxiety disorder and possible
attention deficit/hyperactivity disorder. He agreed the children were appropriately
placed with the A.’s, noting that Mrs. A. “has shown a lot of interest as well as
support and encouragement in the children’s academic and social activities” and
“implements a very caring and structured discipline style.” On the eve of the
section 366.26 hearing, the caseworker called the therapist seeking elaboration.
The therapist told the caseworker that the children appeared to have a lot of
internal anger and that the goal of the therapy was to reduce or eliminate their
anger, aggressiveness, anxiety and self-abuse. He stated it might be necessary to
separate the children if they continued to behave aggressively toward each other.
However, he expressed the opinion that the children were well-adjusted in their
placement and responded satisfactorily to discipline and their structured living
environment.
In April 2013, the A.’s continued to express their commitment to adopting
all the children.13 Their home study was complete and approved. The caseworker
expressed the opinion that the children were well-adjusted in the placement and
13
During that same period, a paternal aunt came forward and indicated her
willingness to adopt all five siblings.
6
appeared stable and happy. At the May 1, 2013 section 366.26 hearing, the court
found by clear and convincing evidence that the children were likely to be adopted
and terminated parental rights. Father appealed.
DISCUSSION
Father contends the juvenile court’s finding that the children were adoptable
was not supported by substantial evidence.14 For the reasons discussed, we
disagree.
“A finding of adoptability requires ‘clear and convincing evidence of the
likelihood that adoption will be realized within a reasonable time.’” (In re Valerie
W. (2008) 162 Cal. App. 4th 1, 13, quoting In re Zeth S. (2003) 31 Cal. 4th 396,
406.) Clear and convincing evidence is evidence “sufficiently strong to command
the unhesitating assent of every reasonable mind.” (In re Valerie W., supra, at
p. 13.) We review a trial court’s determination of adoptability for substantial
evidence, keeping in mind the heightened standard of proof. (In re R.C. (2008)
169 Cal. App. 4th 486, 491; see In re Kristin H. (1996) 46 Cal. App. 4th 1635, 1654.)
The question of adoptability “focuses on whether the child’s age, physical
condition and emotional health make it difficult to find a person willing to adopt
that child.” (In re Valerie W., supra, 162 Cal.App.4th at p. 13.) “Although a
finding of adoptability must be supported by clear and convincing evidence, it is
nevertheless a low threshold: The court must merely determine that it is ‘likely’
that the child will be adopted within a reasonable time.” (In re K.B. (2009) 173
Cal. App. 4th 1275, 1292, quoting 366.26, subd. (c)(1).) In assessing adoptability,
14
Father did not raise any issue pertaining to adoptability at the hearing, but whether
an adoptability finding is supported by substantial evidence may be raised for the first
time on appeal. (See, e.g., In re Gregory A. (2005) 126 Cal. App. 4th 1554, 1560; In re
Erik P. (2002) 104 Cal. App. 4th 395, 399.)
7
courts often describe minors who are likely to be easily placed due to their young
age and good health as “generally adoptable” and those who might otherwise be
difficult to place due to being older or having significant physical or mental
handicaps as “specifically adoptable,” indicating that a specific caretaker willing to
adopt has been identified. (See, e.g., In re R.C., supra, 169 Cal.App.4th at pp. 492-
494; In re Brandon T. (2008) 164 Cal. App. 4th 1400, 1409; In re Carl R. (2005)
128 Cal. App. 4th 1051, 1062.) The juvenile court need not state on the record
whether it found the child “‘generally adoptable’” or “specifically adoptable”; we
will affirm as long as clear and convincing evidence in the record establishes the
likelihood that the dependent child will be adopted within a reasonable time. (In re
A.A. (2008) 167 Cal. App. 4th 1292, 1313.)
Here, all the children were young (under seven at the time of the section
366.26 hearing), physically healthy, and -- in the words of the caseworker --
“social and friendly.” Although S, Kylie, and Kayla had manifested emotional
and/or developmental issues, more than one family had expressed an interest in
adopting them. Accordingly, the court reasonably could have found them to be
generally adoptable. (See In re Jennilee T. (1992) 3 Cal. App. 4th 212, 224-225
[finding of adoptability of child with neurological and developmental problems
supported where multiple families and one relative expressed interest in adoption];
In re Sarah M. (1994) 22 Cal. App. 4th 1642, 1650 [where even one family
expresses willingness to adopt, general adoptability is supported].)
Moreover, the evidence clearly supported that they were specifically
adoptable. The A.’s had cared for two of the children since their detention in 2010
and Kayla since 2011. By the time of the section 366.26 hearing, all five of the
children had been living in their home for nine months. The A.’s were intimately
familiar with the children’s developmental and emotional issues, but nevertheless
assured the caseworker and the court at the time of the hearing that they were
8
committed to adopting them. They had briefly wavered months earlier because
they mistakenly believed assistance in remedying the children’s developmental and
emotional problems would be withdrawn after the adoptions became final. Once
that misconception was resolved, their enthusiasm for adoption returned. “[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. . . . [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.” (In re A.A., supra,
167 Cal.App.4th at p. 1312.)
Father contends the therapist’s comments about the potential need to
separate the children if they continued to behave aggressively toward each other
cast doubt on the viability of the placement of all five children with the A.’s and
therefore on whether some or all of the children were likely to be adopted.
Preliminarily, we observe there is no requirement that a court considering the issue
of adoptability in the context of terminating parental rights over multiple children
find that the children are likely to be adopted in a single home as a sibling group.
(In re I.I. (2008) 168 Cal. App. 4th 857, 872, fn. 3.) When the children were in two
separate foster homes, both sets of foster parents expressed interest in adopting
them, supporting a finding that even if separated, the children were all likely to be
adopted by someone. Moreover, the evidence presented did not demonstrate the
children were likely to be separated or taken from the A.’s home. The therapist
approved of the children’s placement with the A.’s, as their foster mother showed
“a lot of interest as well as support and encouragement in the children’s academic
and social activities” and “implement[ed] a very caring and structured discipline
style.” His comments about possible future separation were made during a
9
conversation with the caseworker and appeared to be based on speculation about
what might happen if therapy and discipline proved to be ineffective. His
speculation about future possibilities was undermined by the caseworker, who
reported the children were building a solid relationship with each other and with
the A.’s and were excited to live and play together. The A.’s themselves had
reported being able to handle the children. The court could reasonably rely on this
evidence to find that the children would likely remain with their prospective
adoptive family, the A.’s. In short, substantial evidence supported the court’s
finding of adoptability.
DISPOSITION
The juvenile court’s order terminating parental rights is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, J.
We concur:
WILLHITE, Acting P. J.
EDMON, J.*
*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
10