In re T.G. CA3 ( 2013 )

Filed 10/22/13 In re T.G. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Butte)
----
In re T.G., a Person Coming Under the Juvenile
Court Law. C072860
BUTTE COUNTY DEPARTMENT OF (Super. Ct. No. J-35989)
EMPLOYMENT AND SOCIAL SERVICES,
Plaintiff and Respondent,
v.
TYLER G.,
Defendant and Appellant.
Tyler G., father of the minor, T.G., appeals from orders of the juvenile court
denying his petition for modification and terminating his parental rights. (Welf. & Inst.
Code, §§ 366.26, 388.)1 Father argues that the court abused its discretion in denying his
petition to modify the minor’s placement and that there was insufficient evidence to
1 Undesignated statutory references are to the Welfare and Institutions Code.
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support the court’s finding the minor was likely to be adopted in a reasonable time. We
shall affirm.
FACTUAL BACKGROUND
In July 2011, the Butte County Department of Employment and Social Services
(Department) detained the four-month-old minor from parental custody, in part, at the
request of father, who acknowledged he was unable to care for the minor or protect him
from the mother. The minor had been diagnosed with hemophilia and needed specialized
care and medical treatment. The mother has a history of serious mental health issues with
multiple involuntary evaluation holds pursuant to section 5150 and her current mental
state rendered her unable to care for the minor. Father had recent convictions for felony
stalking and a misdemeanor violation of court orders to prevent domestic violence.
The dispositional report recommended providing services to father and bypassing
services for the mother, who had failed to reunify with the minor’s half sibling. While
the minor needed special care and medical treatment, he was happy, playful and on track
developmentally. The minor’s health and education passport stated that he had been
diagnosed with borderline moderate to severe hemophilia and would be reassessed for
needing infusions of his medications as he became more mobile. The necessary infusion
medications were sent to the foster mother and would be administered in the local
hospital. In August 2011, the minor was doing well with no active bleeding. Father was
visiting and participating in some services and was in compliance with treatment for his
mental health disorder. The court adopted the recommended dispositional findings and
orders. The juvenile court ordered that the care and custody of the minor was under the
supervision of the Department, which had discretion to place the minor in foster care.
The March 2012 status review report recommended termination of father’s
services. Father had not attended counseling, failed to discuss his progress in services
with the social worker and had not completed the necessary release forms to allow the
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social worker to contact the therapist to discuss his progress. The minor continued to
receive local pediatric care and specialized care from University of California at Davis
Hemophilia Treatment Center (UC Davis) with prescribed medications as needed for
bleeding. He continued to meet developmental milestones and had no mental or
emotional issues. As the minor became more mobile, he required greater supervision
since he was unable to tell when he injured himself while playing. His current foster
parent diligently attended to his needs and the UC Davis staff reported that the foster
mother’s care of the minor’s special medical needs was beyond the level they often saw
in many biological parents. Since the dispositional hearing, the minor had a CT scan in
October 2011 for a fall on his head which was negative and was seen twice in November
2011 at the hospital for bleeding from biting his tongue. His followup at UC Davis
indicated he was doing well. UC Davis provided a letter explaining the minor’s
condition, how he could be affected by bleeding, how he was treated by replacing the
missing clotting factor and that parents could be educated to provide the treatment at
home until the minor could learn to self-infuse. The letter further discussed the outcomes
for the minor if his bleeding was not promptly treated and that head injuries were the
most serious for him. The letter concluded that the minor needed to remain in a home
which was safe and stable with a caretaker who was very involved in his care.
Father filed a written statement in March 2012 maintaining that he wanted a
different social worker because the current social worker was harassing him and had
made false reports about his participation in services and other matters. In a second
statement in May 2012, father again complained about the social worker’s misstatements
and claimed that the social worker hated him. In a third statement, also in May 2012,
father complained about both the foster mother, for not taking proper precautions to
protect the minor, and the social worker, for continued false allegations and failing to
keep a close eye on the foster mother.
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At the six-month review hearing in June 2012, the social worker testified that
father had expressed concerns about the number of times the minor had been to the
hospital. The social worker said she had explained to father that the minor went to the
hospital because that was where his medication was administered and that the minor was
not being harmed, he was behaving only as a normal, active toddler, which resulted in
some falls and injuries. The social worker believed father had a better understanding
after the explanation. After a break in the hearing, the father no longer contested the
recommended orders including the ongoing placement of the minor in the current foster
home and submitted the matter. The court terminated father’s services and set a section
366.26 hearing.
In August 2012, father filed a statement charging that the social worker had lied
and ruined his family. In September 2012, father filed a second statement which again
expressed his serious concerns about the foster parent due to the minor’s injuries.
The Department’s report for the section 366.26 hearing recommended termination
of parental rights with adoption as the minor’s permanent plan. The report stated the
minor received ongoing specialized care from UC Davis for his hemophilia and was
prescribed medications for infusions to treat bleeding. The minor had been in the same
foster home for over a year and was comfortable there. The report said the caretaker was
interested in adoption, but the State Department of Social Services (DSS) believed it
might be in the minor’s best interests to transition him to a new home. The foster mother
did have other children in the home and there was some question whether she could keep
the minor safe. The report noted that father was opposed to the current placement
because he believed the minor was not well supervised, however, the social worker had
reviewed incident reports, observed the minor in placement and found no evidence of
neglect. Since the last report, the minor was infused at the local hospital in March 2012
following a fall which resulted in a head injury. He was also seen at the local hospital in
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April and May 2012 and infused. The minor was seen again in June three times, with a
infusion the last time. The minor was seen at the local hospital in August after a fall
where he hit his head and was infused to treat bleeding.
The DSS assessment determined the minor was adoptable. The DSS assessment
stated the minor was in good general health and noted his hemophilia required a caretaker
with skilled knowledge who could give him prompt attention. The assessment
acknowledged that even with careful supervision, injuries were extremely common in
children from the ages of nine months to six years. The assessment concluded the minor
was receiving timely and quality medical care while in his current placement. The minor
continued to meet developmental milestones and was a happy, stable toddler. He had a
healthy attachment to his caregiver but had some issues when overstimulated by new
people or a lot of noise. The assessment stated that father agreed with adoption but had
complaints about the current caregiver’s supervision of the minor and wanted a different
placement. The assessment indicated the current caretaker was very committed to the
minor and wanted to adopt him. The caretaker had four other children in the home
ranging in age from four to 14 years old. The caretaker showed good parenting practices
and was capable of meeting the minor’s needs. The caretaker was extremely
knowledgeable about the minor’s condition and had gone to great lengths to assure he got
the best care. The minor’s doctors attributed the minor’s exceptional rate of healing from
injuries to the healthy diet and lifestyle provided by the caretaker. The assessment stated
the minor had a significant relationship with his foster family and would benefit from
adoption. Based on the available information, removal from the home would be
detrimental. However, given father’s objections DSS wanted to assure the minor’s and
the current foster family’s safety before proceeding and would transfer the minor if
necessary. Preliminary evaluation showed that the current caretaker was suitable and
committed and was referred for completion of an adoption homestudy.
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At the date set for the section 366.26 hearing, the juvenile court continued the case
for a contested hearing. Father continued to object to the minor’s placement and the
court ordered him not to contact the foster mother.
Just prior to the contested hearing, father filed a petition for modification seeking
to remove the minor from his current placement. In support of the petition, father stated
his belief that the minor was not properly cared for in the current home and that both the
Department and DSS refused to move him. Father further believed that there were too
many children in the foster home and that that circumstance contributed to the minor’s
injuries. Father did not believe the foster mother could care for the minor in the long
term and that the minor would be better served by a two-parent home with fewer
children. The paternal grandparents provided a declaration in support of the petition
which expressed much of the same feelings and beliefs as father had stated in the petition.
The court set the modification petition for a hearing.
The combined hearing on the petition for modification and selection of a
permanent plan commenced in November 2012. Through counsel, father offered to
prove that sometime in the previous year he had found that other children were placed in
the minor’s foster home. Since then the minor had several injuries which caused father
concern, including a bump on the head, a swollen eye and bruises on the neck. Father
was given different stories on how the minor got the injuries. Father met with the state
adoptions workers regarding his concerns. Father did not believe the current foster parent
could give the minor the level of care and supervision he required and believed the
current placement led to extra hospital visits beyond that of a normal child his age.
Father admitted he could not care for the minor and wanted the minor placed with a two-
parent family where he could be more closely supervised. The juvenile court had father
sworn and testify that the offer of proof would have been his testimony and was the truth.
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Father’s counsel argued there was a change of circumstances in that the foster
mother had additional children in the home and that the minor had received significant
injuries in the home. Further, father believed it was in the minor’s best interests to be
removed from the home and asked for an order that the minor be removed. Father did not
contest termination of his parental rights.
Minor’s counsel opposed granting the petition for modification as not in the
minor’s best interests.
The juvenile court found insufficient evidence of a change in circumstances and
further that the requested relief was not in the minor’s best interests, noting that the social
worker reviewed the incident reports and found no evidence of neglect. The court denied
father’s petition for a placement change. The court found clear and convincing evidence
the minor was likely to be adopted and terminated parental rights.
DISCUSSION
I. Petition for Modification
Father argues the juvenile court abused its discretion in denying his petition for
modification of the minor’s placement. We conclude father lacks standing to assert this
issue.2
The California Supreme Court recently addressed the question of a parent’s
standing to challenge placement when appealing from denial of a placement request and
an order terminating parental rights, which occurred at the same hearing. The court
concluded that “[a] parent’s appeal from a judgment terminating parental rights confers
2 In the interest of judicial economy and mindful of the effects of delay in juvenile
dependency cases, we resolve this issue without ordering supplemental briefing. A party
claiming to be aggrieved by this procedure may petition for rehearing under Government
Code section 68081.
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standing to appeal an order concerning the dependent child’s placement only if the
placement order’s reversal advances the parent’s argument against terminating parental
rights.” (In re K.C. (2011) 52 Cal. 4th 231, 238 [the father did not contest termination in
the juvenile court or raise an exception to termination which might depend on
placement].)
Here, as in K.C., father did not contest termination of his parental rights in the
juvenile court. Even on appeal he challenges only the sufficiency of the evidence
supporting adoptability. Reversal of the juvenile court’s order denying his petition to
modify placement in no way advances that substantial evidence argument, particularly
when father made it clear he did not oppose adoption by a different caretaker. The
petition for modification focused on the caretaker; the question of adoptability
necessarily focuses on the minor. Father is simply not aggrieved by the juvenile court’s
decision denying his petition for modification of the minor’s placement. (In re L. Y. L.
(2002) 101 Cal. App. 4th 942, 948.)
II. Substantial Evidence of Adoptability
Father argues substantial evidence does not support the juvenile court’s finding
that the minor was likely to be adopted in a reasonable time.3 Father further contends
that the minor was only specifically adoptable due to his special needs and the court’s
finding of adoptability was premature.
When the sufficiency of the evidence to support a finding or order is challenged on
appeal, even where the standard of proof in the trial court is clear and convincing, the
reviewing court must determine if there is any substantial evidence—that is, evidence
which is reasonable, credible and of solid value—to support the conclusion of the trier of
3 Father’s motion to construe the notice of appeal as from both the section 388 ruling and
the order terminating parental rights was granted August 8, 2013.
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fact. (In re Angelia P. (1981) 28 Cal. 3d 908, 924; In re Jason L. (1990) 222 Cal. App. 3d
1206, 1214.) In making this determination we recognize that all conflicts are to be
resolved in favor of the prevailing party and that issues of fact and credibility are
questions for the trier of fact. (In re Jason L., supra, 222 Cal.App.3d at p. 1214; In re
Steve W. (1990) 217 Cal. App. 3d 10, 16.) The reviewing court may not reweigh the
evidence when assessing the sufficiency of the evidence. (In re Stephanie M. (1994)
7 Cal. 4th 295, 318-319.) Generally, issues not raised in the juvenile court are forfeited
on appeal, however, a challenge to the sufficiency of the evidence to support the court’s
finding of adoptability is an obvious exception to the rule. (In re Brian P. (2002)
99 Cal. App. 4th 616, 623.)
“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. The fact
that the child is not yet placed in a preadoptive home nor with a relative or foster family
who is 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.” (§ 366.26, subd. (c)(1).)
Determination of whether a child is likely to be adopted focuses first upon the
characteristics of the child. (In re Sarah M. (1994) 22 Cal. App. 4th 1642, 1649.) The
existence or suitability of the prospective adoptive family, if any, is not relevant to this
issue. (Ibid.; In re Scott M. (1993) 13 Cal. App. 4th 839, 844.) The fact that a prospective
adoptive family is willing to adopt the minor is evidence that the minor 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.)
The reports contain ample evidence that the minor’s characteristics are such that
he is likely to be adopted in a reasonable time. He is young, in general good health with
a diagnosis of hemophilia, he is meeting developmental milestones and is described as a
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happy, bright, active toddler. He is able to form secure and stable attachments. He has
no behavioral or emotional problems with the exception of being overstimulated in some
situations. As to the hemophilia, his treating specialist at UC Davis has made it clear that
the condition is manageable by an informed and trained parent. It was expected that
more frequent infusions would be needed as the minor became mobile. Further, the
specialist expected that parental care would transition to self-care at some point and the
minor would be able to do his own infusions. Thus, while the minor’s medical diagnosis
was of an admittedly serious condition, it was nonetheless treatable and required only
education and training on the part of the caretaker coupled with careful management of
his activities in order to minimize injuries. The current caretaker, who was considered by
the medical professionals to be providing exceptional care to the minor, was willing to
adopt him.
Since the minor’s characteristics alone support a finding that he is likely to be
adopted by the current caretaker or some other person in a reasonable time, we need not
address the question of specific adoptability or any caretaker issues raised by father.4
4 DSS found the current caretaker was very committed to the minor, had good parenting
practices and was capable of meeting the minor’s needs. She was extremely
knowledgeable and went to great lengths to ensure he received the best care. The minor
had a significant relationship with her and DSS assessed that it would be detrimental to
remove the minor from her care. The sole reason DSS continued to assess the
appropriateness of the family was to ensure the minor’s safety in the face of father’s
charges of neglect. These ongoing allegations were investigated by the social worker and
found to be baseless. The DSS referred the current caretaker for an adoption homestudy.
DSS also only considered moving the minor from his current home to an out-of-county
placement to ensure the safety of the minor and his current foster family. Father has a
history of mental illness and of criminal convictions that show he is inclined to act in
ways that may be threatening to others. He has refused to accept that investigation
showed his concerns of foster parent neglect were not founded. The juvenile court was
required to order him not to contact the foster parent. Whether he is driven by an
overwhelming need to protect his child or from his mental health issues is unknown.
Nonetheless, father’s fears do not translate into sound reasons for disqualifying a
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DISPOSITION
The orders of the juvenile court are affirmed.
BUTZ , J.
We concur:
ROBIE , Acting P. J.
HOCH , J.
caretaker who has demonstrably provided exceptional care for the minor from adopting
the minor. There is no basis for considering the minor’s current foster parent inadequate
in any way.
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