In re A.H. CA4/1 ( 2015 )

Filed 7/21/15 In re A.H. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re A.H., a Person Coming Under the
Juvenile Court Law.
D067140
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. J518713A)
Plaintiff and Respondent,
v.
FELICIA W.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Kimberlee A.
Lagotta, Judge. Affirmed.
Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and
Respondent.
At the time the trial court terminated defendant and appellant Felicia W.'s (mother)
parental rights over her then eight-year-old son, A.H., A.H. had been in a prospective
adoptive home for three months and was reported to be doing well, after two earlier
placements had been unsuccessful because of behavioral problems. At the permanent
placement hearing, the trial court also received stipulated testimony from a social worker
to the effect there were 18 local families interested in adopting a child with A.H.'s
characteristics. Given these circumstances, and contrary to mother's argument on appeal,
there was sufficient evidence that A.H. was adoptable and that termination of parental
rights was therefore required by Welfare and Institutions Code section 366.26,
subdivision (c).1
FACTUAL AND PROCEDURAL BACKGROUND
A.H. was born in March 2006. On June 13, 2013, plaintiff and respondent San
Diego County Health and Human Services Agency (the agency) filed a petition alleging
A.H. and his younger half sibling, K., were dependents because, while living in a motel
room with the children, mother had permitted her boyfriend to smoke methamphetamine
in the bathroom. Three of mother's older children were in out-of-home placements at the
time the petition was filed.
Upon further investigation by the agency, A.H. disclosed that he had observed
incidents of domestic violence between mother and her boyfriend, and his therapist
1 All further statutory references are to the Welfare and Institutions Code.
2
believed A.H. was suffering from post-traumatic stress disorder. A.H.'s therapist was
also struck by the lack of attachment between A.H. and mother.
The trial court sustained the petition and initially detained A.H. with a relative
caregiver. In January 2014, the trial court terminated reunification services. Mother had
not participated in the reunification plan and had failed to maintain regular contact with
A.H. and K.
Although in many respects A.H. did well in the relative placement, in March 2014,
the caregiver asked that he be removed because he was being defiant and not following
house rules. A.H. was then placed in a foster home, where he stayed until August 19,
2014, when, because of aggressive behavior, his foster parents asked that he be removed.
Between August 2014 and the continued December 2014 permanent placement
hearing, A.H. was in a fost-adopt home and doing very well. In October 2014, the social
worker described the fost-adopt placement as follows: "[A.H.] remains in the home he
moved to on 8/19/2014. The caregivers were given [A.H.]'s history, and appear to have
reasonable expectations for [A.H.]'s behaviors. They report being able to have good
parental boundaries beginning in addition to having fun. CASS was in the home to assist
with the transition, and the case was closed successfully with the anticipation that the
placement would be permanent. [A.H.] has opened up with caregivers about his feelings
and some of his past experiences, which was not the case at the other placements. The
caregivers state that [A.H.] sometimes does not want to listen, and will have periods of up
to 45 minutes where he goes off to the side before resuming homework or other tasks he
does not enjoy. The family is able to talk about the experiences and move forward
3
together. They also communicate openly about any difficulties and are open to services
and ideas on how to best parent [A.H.]
"[A.H.] reports comfort in the home, and has expressed that he likes that his
current caregivers explain their reasoning for decisions [A.H.] may not like instead of a
simplistic, 'because we said so.' He is also able to practice his Spanish, as the mother of
one of the caregivers lives in the home and is Spanish-speaking. When asked on a scale
of 1-10, [A.H.] reported that he is at a '9' for wanting to stay in this home permanently.
He initially could not think of what it would take to make it a 10,[] but did state he would
be certain that he would be able to stay in the home after more time passes."
At the permanent placement hearing, the parties stipulated that, if called as a
witness, the social worker would testify that there were 18 approved adoptive families in
San Diego County interested in adopting a boy A.H.'s age and with his ethnic
background; that the family where he was placed had been approved for adoption; that
the family has had A.H. in their home for three months; and that the family was prepared
to move forward with adoption.
The trial court found that A.H. was both generally and specifically adoptable and
terminated mother's parental rights as well as the parental rights of A.H.'s father.
Mother filed a timely notice of appeal.
DISCUSSION
Mother argues on appeal that the agency failed to show A.H. was adoptable within
the meaning of section 366.26, subdivision (c)(1) and therefore erred in terminating her
parental rights. We find no error.
4
1. Legal Principles
In In re B.D. (2008) 159 Cal. App. 4th 1218, 1231-1232, we set forth the principles
that govern mother's contentions on appeal: "At a section 366.26 hearing, the court may
(1) terminate parental rights and free the child for adoption, (2) identify adoption as the
permanency plan goal and continue the hearing for no more than 180 days to locate an
appropriate adoptive home for the child, (3) appoint a legal guardian, or (4) order the
child's placement in long-term foster care. (§ 366.26, subd. (b).) At all proceedings
under section 366.26, the court must consider the wishes of the child and act in the best
interests of the child. (§ 366.26, subd. (h)(1).)
"To select adoption as the permanency plan, the court must find by clear and
convincing evidence the child is likely to be adopted within a reasonable time. The fact
that the child is not yet placed with a family prepared to adopt the child, 'shall not
constitute a basis for the court to conclude that it is not likely the child will be adopted.'
[Citation.] If the court finds that the child is likely to be adopted, it must order adoption
unless termination of parental rights would cause serious detriment to a child under one
or more specific statutory exceptions. [Citations.] [¶] . . . [¶]
"A finding of adoptability requires 'clear and convincing evidence of the
likelihood that adoption will be realized within a reasonable time.' [Citation.] The
question of adoptability usually focuses on whether the child's age, physical condition
and emotional health 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
5
of the prospective adoptive home. [Citation.] When the child is deemed adoptable based
solely on a particular family's willingness to adopt the child, the trial court must
determine whether there is a legal impediment to adoption. [Citation.] The juvenile
court should also explore a child's feelings toward his or her parents, foster parents and
prospective adoptive family. [Citations.]
"On review, we determine whether the record contains substantial evidence from
which the court could find clear and convincing evidence that the child was likely to be
adopted within a reasonable time. [Citations.] The evidence must be sufficiently strong
to command the unhesitating assent of every reasonable mind. [Citation.] We give the
court's adoptability finding the benefit of every reasonable inference and resolve any
evidentiary conflicts in favor of the judgment of the trial court."
2. Analysis
Here, the 18 homes identified by the social worker as well as the approved
adoptive home where A.H. was placed at the time of the hearing, where he was happy
and the family was willing to go forward with adoption, show that A.H. was both
generally adoptable and specifically adoptable.
The fact that A.H. had previously experienced unsuccessful placements did not
prevent a finding of either general or specific adoptability. In particular, the possibility of
future medical or psychological challenges does not prevent a finding of adoptability.
(See In re Jennilee T. (1992) 3 Cal. App. 4th 212, 224.) Rather, as this record shows,
while finding a placement where A.H.'s emotional needs could be addressed successfully
took some effort on the part of the agency, the agency met that challenge. The agency's
6
efforts, the fost-adopt family's willingness and ability to accommodate A.H.'s needs and
his response, demonstrate both a general and very specific likelihood that he will be
adopted. No greater showing was required. (See In re Zeth S. (2009) 31 Cal. 4th 396,
406.)
The circumstances on this record are in marked contrast to those considered in In
re B.D. and In re Asia L. (2003) 107 Cal. App. 4th 498. As the agency points out, in In re
B.D., no approved home that would take a sibling group of five had been identified and
the oldest sibling of the group was opposed to adoption; rather only one, unapproved,
family had expressed an interest in adopting all five siblings. In In re Asia, both children
suffered from fairly profound emotional and developmental deficits and the agency had
failed to provide evidence that there was an approved family willing to adopt them.
Given those situations, it was error to find that the children in In re B.D. and In re Asia L.
were adoptable. (See In re B.D., supra, 159 Cal.App.4th at pp. 1231-1232; In re Asia L.,
supra, 107 Cal.App.4th at p. 512.) Here of course, the agency found and placed A.H.
with an approved family that was willing to adopt him. That fact by itself prevents us
from overturning the trial court's adoptability finding. (See In re Zeth S., supra, 31
Cal.4th at p. 406.)
7
DISPOSITION
The trial court's order terminating mother's parental rights is affirmed.
BENKE, Acting P. J.
WE CONCUR:
HUFFMAN, J.
McINTYRE, J.
8