In re D.H. CA3 ( 2014 )

Filed 1/31/14 In re D.H. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
In re D.H., JR., a Person Coming Under the C074367
Juvenile Court Law.
(Super. Ct. No. JD232306)
SACRAMENTO COUNTY DEPARTMENT
OF HEALTH AND HUMAN SERVICES,
Plaintiff and Respondent,
v.
D.H., SR.,
Defendant and Appellant.
D.H., Sr. (father), appeals from the juvenile court’s order terminating parental
rights. (Welf. & Inst. Code, § 366.26.)1 He contends insufficient evidence supports the
predicate finding that the minor, D.H., Jr. (the minor), is adoptable. We shall affirm.
1 Undesignated statutory references are to the Welfare and Institutions Code.
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FACTUAL AND PROCEDURAL BACKGROUND
In April 2012, the Sacramento County Department of Health and Human Services
(Department) filed a section 300 petition as to the minor (born in October 2010). The
petition alleged that father was incarcerated in Deuel Vocational Institution and mother
(N.T.) was a homeless methamphetamine addict who had dropped off the minor with the
minor’s godfather, then failed to remain in contact with him or provide for the minor.
The detention report further alleged that mother’s whereabouts were unknown and father
would remain incarcerated until 2014.
At the contested jurisdictional/dispositional hearing in August 2012, the juvenile
court sustained the section 300 petition, ordered the minor placed in foster care, and
ordered reunification services for mother but not for father.
The January 2013 six-month status review report proposed terminating mother’s
services because she had not engaged in services or visitation and her whereabouts
remained unknown. The minor had developmental delays, including significant speech
delays, for which he was receiving assistance; he was also receiving therapy because he
struggled to express his feelings and needs and was displaying sleep disruption, severe
tantrums, and gorging. A recent placement change had caused him to regress and he was
still having difficulty adjusting to the new placement, but was improving slightly week by
week. Despite the minor’s problems, the Department considered him adoptable and
recommended adoption as the permanent plan.
In January 2013, the juvenile court terminated mother’s services and set a section
366.26 hearing for May 2013. The court directed the Department to assess whether
adoption or some other permanent plan would be most appropriate.
The section 366.26 report, filed in April 2013, called the minor “generally
adoptable” despite “some behavioral problems and a speech delay.” He had “no
diagnosed mental handicap” and was “making significant improvements in his
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behaviors.” He was “doing exceptionally well in the care of his adoption homestudy
approved family,” with whom he had been placed since December 2012. They saw to it
that all of his needs were met. He was happy and “ha[d] made a very good adjustment to
his caretakers and environment.” The likelihood of his adoption was “excellent.”
When assessed in June and July 2012, the minor was found to be “at age level for
cognition, delayed approximately 6 to 8 months for speech, and slightly above age level
for fine and gross motor development and for self[-]help skills.” Since then, he had made
“good developmental progress”; his “language skills ha[d] increased tremendously and he
ha[d] a vocabulary of approximately 80 words” (as compared to the “developmental
milestone for an average two year old” of about 300 words). His physical development
was on track. He still had disturbed sleep, but could fall back to sleep after being
reassured by his caretakers.
The minor continued to receive weekly in-home Parent Child Interactive Therapy
services to improve his frustration tolerance and the parent-child relationship. He had
responded well, with a decrease in tantrums, food hoarding, and gorging. However,
frequent changes of therapists had caused him to regress in the past.
Previous foster parents had described the minor as “sad,” with possible
“attachment issues.” Now, however, he smiled often and enjoyed new experiences. He
was caring and helpful, got along well with other children, and had started in a soccer
league for children in his age group.
At the contested section 366.26 hearing in June 2013, the juvenile court stated: “It
appears that this very young child is generally adoptable with no exceptions that would
make him in any way difficult to be adopted by anyone.” Father’s counsel argued that
the minor was not likely to be adopted, citing the minor’s diagnoses of “abnormal health
and development, speech delays, [and] language delays,” his need for “early intervention
services,” his “problems with food and hoarding behaviors,” his “tantrums,” and his
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possible continuing “attachment issues.” Counsel objected to a finding of adoptability, to
the choice of adoption as a permanent plan, and to the termination of father’s parental
rights. The juvenile court responded:
“It’s very interesting when one hears the arguments regarding children’s
likelihood of adoption. And, generally, we are guided by looking at characteristics that
perhaps maybe are realistic for most people [who] would not want to adopt this child.
I’m not really sure that that’s what the standard is under the law, and I don’t know
whether that’s really been found.
“There is a home that has been willing to accept [the minor] into the home, to
work with him, to love him, to guide him, to be everything a parent needs to be with a
child. And they have not found that whatever characteristics he has makes him
unadoptable to them. And that is evidence to the Court that at least one family who did
not know [the minor] before finds him adoptable. If one family finds him adoptable,
even with all of the problems that he had, and now that he has found a home with them
and their work with him, his tantruming is less. He is easily deterred and calmed down.
They take him to public places where he acts well-behaved. Even if his diagnosed
developmental delays, developmental and social and emotional development problems
have increased, it could be, and the Court would only be speculating, that it could easily
be that what would be seen and diagnosed by the experts was really the result, not
necessarily of his own delays or emotional problems, but the result of not being able to
receive what he’s been receiving in this home.”
The juvenile court found that the minor was likely to be adopted, termination of
parental rights would not be detrimental to him, and freeing him for adoption was in his
best interest. The court ordered the termination of mother’s and father’s parental rights
and chose adoption as the permanent plan.
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DISCUSSION
Defendant contends insufficient evidence supports the finding of adoptability
made by the juvenile court. We disagree.
“If the court determines, based on the assessment . . . and any other relevant
evidence, by a clear and convincing standard, that it is likely the child will be adopted,
the court shall terminate parental rights and order the child placed for adoption.”
(§ 366.26, subd. (c)(1).)
We review the finding that the child is likely to be adopted within a reasonable
time under the substantial evidence standard, giving it the benefit of every reasonable
inference and resolving any evidentiary conflicts in favor of affirming. (In re I.I. (2008)
168 Cal.App.4th 857, 869.) That is, we must 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. (In re B.D. (2008)
159 Cal.App.4th 1218, 1232.)
The determination of whether a child is likely to be adopted focuses first upon the
characteristics of the child; therefore, a finding of adoptability does not require that the
child already be in a prospective adoptive home. (In re Sarah M. (1994) 22 Cal.App.4th
1642, 1649 (Sarah M.).) However, the fact that a prospective adoptive family has
expressed interest in adopting the child is evidence that the child is likely to be adopted
by that family or some other family in a reasonable time. (In re Lukas B. (2000)
79 Cal.App.4th 1145, 1154; Sarah M., supra, 22 Cal.App.4th at pp. 1649-1651.) The law
does not require the juvenile court to find that a child is “generally adoptable” before
terminating parental rights. (In re A.A. (2008) 167 Cal.App.4th 1292, 1313.)
Here, the Department called the minor “generally adoptable” and pointed to no
characteristics which, in the Department’s opinion, would make the minor difficult to
place with prospective adoptive parents. The minor’s placement with foster parents who
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have indicated they wish to adopt him is strong evidence that he is likely to be adopted
within a reasonable time. (In re Lukas B., supra, 79 Cal.App.4th at p. 1154; Sarah M.,
supra, 22 Cal.App.4th at pp. 1649-1651.) Thus, the minor’s delays and emotional
problems, all of which were significantly improved or improving as of the section 366.26
hearing, did not militate against adoptability.
Father reiterates the litany of the minor’s problems, which father’s trial counsel
recited below. But father cites no authority holding that any of these problems would
necessarily constitute an obstacle to adoption, and we know of none.
Father relies on In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205 and In re
Amelia S. (1991) 229 Cal.App.3d 1060, 1065-1066 (Amelia S.), which he represents as
holding: “The fact that persons have expressed an interest in adopting a special needs
child is not by itself sufficient to show clear and convincing evidence that the child is
adoptable.” But neither decision actually so holds, and both are distinguishable on their
facts.
In Jerome D., which does not use the expression “special needs child,” the
juvenile court’s finding of adoptability was based solely on the willingness of one foster
parent to adopt, but a homestudy had not been done on him despite his known criminal
and Child Protective Services history; nor had the adoption assessment considered the
minor’s close relationship with his mother, or the fact that he had a prosthetic eye, which
required care and treatment. (In re Jerome D., supra, 84 Cal.App.4th at p. 1205.) In the
present case, while the section 366.26 report recommended adoption, and the juvenile
court found the minor generally adoptable, the finding was not based solely on the
willingness of the current caretakers to adopt (though the court properly found their
willingness to adopt to be strong evidence of adoptability). A homestudy on those
caretakers had been done, and they had passed. The minor has no relationship with either
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biological parent. Finally, there is no evidence that his delays and emotional problems
are permanent and intractable, rather than temporary and remediable.
In Amelia S., the minor was one of 10 children, ranging in age from a newborn to
nine, who were all taken into protective custody. (Amelia S., supra, 229 Cal.App.3d at
p. 1062.) Each permanency hearing dealt with five of the children. (Ibid.) The
permanency reports indicated that the sibling set to which the minor belonged would all
be placed together. (Id. at p. 1063.) The report stated that “[r]ecruitment for prospective
adoptive families ha[d] been initiated and several possible families ha[d] already been
identified,” but did not state that any had expressed willingness to adopt. (Ibid.) A
petition for modification filed by the adoption assessment agency asserted: “The minor is
a special needs child in that the minor is part of a sibling set of ten. The minor suffers
from social delays as well. Due to the above circumstances, [the agency] considers the
minor a hard to place child.” (Ibid.) The reviewing court found, under the
circumstances, that the fact “a few foster parents were considering adoption” was “a far
cry . . . from the clear and convincing evidence required to establish the likelihood of
adoption.” (Id. at p. 1065.) In the present case, unlike Amelia S., there is no evidence
that anyone has ever identified the minor as a “special needs child” or a “hard to place
child.” Furthermore, the fact that prospective adoptive parents are willing to adopt the
minor distinguishes this case from Amelia S., in which no such evidence existed.
Substantial evidence supported the juvenile court’s finding of adoptability.
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DISPOSITION
The order terminating father’s parental rights is affirmed.
BUTZ , Acting P. J.
We concur:
MAURO , J.
HOCH , J.
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