In re S.D. CA2/6 ( 2022 )

Filed 12/19/22 In re S.D. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
In re S.D., et al., Persons 2d Juv. No. B320239
Coming Under the Juvenile (Super. Ct. No. 20JD-00179)
Court Law. (San Luis Obispo County)
SAN LUIS OBISPO COUNTY
DEPARTMENT OF SOCIAL
SERVICES,
Plaintiff and Respondent,
v.
Shaun D.,
Defendant and Appellant.
Shaun D. (father) appeals the juvenile court’s order
terminating parental rights to his minor children, S.D. and
S.R.D., and selecting adoption as the permanent plan. (Welf. &
Inst. Code, § 366.26.)1 Father contends there was insufficient
evidence that the children were likely to be adopted in a
reasonable time because they had special needs and there was a
legal impediment to adoption. We affirm.
Facts and Procedural History
In October 2020, the San Luis Obispo County Department
of Social Services (department) filed a dependency petition and
removed two-year-old S.D. and 6-month-old S.R.D. from father
and mother’s care due to ongoing substance use by both parents,
domestic violence, and neglect.
Father and mother have a significant history with the
department. Two of their older children were living with
maternal grandmother in a legal guardianship. S.D. was
informally placed with maternal grandmother from December
2019 to July 2020. The department provided father and mother
voluntary family maintenance services, but those services
terminated in September 2020. Father and mother continued to
use substances and engage in domestic violence. Mother also
threatened to abandon the children. When the children were
detained, they were dirty, had severe rashes, including open and
untreated sores, and S.R.D. weighed only 12 pounds at seven
months of age.
In December 2020, the juvenile court sustained the
department’s dependency petition, removed custody of the
children, and ordered family reunification services for father and
mother. Meanwhile, S.R.D. was improving and gaining weight in
her placement with maternal grandmother. S.R.D. was born
1 All further statutory references are to the Welfare and
Institutions Code.
2
with a cleft palate, which caused some difficulty with her sucking
and swallowing reflex and required surgery. Both children were
referred for services.
By the three-month review report, mother had not had any
contact with the department or the children. She had also given
birth to another child who was removed from her care and placed
in protective custody with a relative. Father made minimal
progress in his case plan, but regularly attended weekly visits
with the children. During the visits, the children appeared
“‘stunned,’” “‘tense,’” and “‘stiff,’” and father struggled to know
how to engage with them. The department assessed the children
as “sweet, happy children who need security and consistency” as
well as a caregiver who can meet their physical and emotional
needs.
In August 2021, at the six-month review hearing, the
juvenile court terminated reunification services for mother, but
continued services for father. The department originally
recommended services be terminated for both parents but
changed its recommendation after father participated in a
juvenile dependency mediation and agreed to reengage and
comply with his case plan. The children continued to participate
in services including early intervention services and speech
therapy. S.D. had recently been prescribed melatonin to help
him sleep better, and S.R.D. had surgery to repair her cleft
palate.
In September 2021, the department filed a section 388
petition alleging that father had failed to comply with the
mediation agreement to meet the terms of his case plan. For
example, he did not complete a single drug test or attend
treatment group for the entire month of August. He did not
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engage in Drug and Alcohol Services (DAS), Parenting Education,
or attend his children’s medical appointments. The Court
Appointed Special Advocate (CASA) agreed with the
department’s recommendation to terminate father’s reunification
services because he had not been able to demonstrate that he
could meet the children’s needs for a “stable” and “consistent”
parent.
The section 388 petition was set for a contested hearing to
be combined with the 12-month review hearing. Following the
contested hearing, the juvenile court found that father
understood the obligations of his case plan but had not complied
with the terms of his case plan in a “meaningful way.” The
juvenile court sustained the petition, terminated father’s
reunification services, and set the matter for a section 366.26
hearing.
In its report for the section 366.26 hearing, the department
recommended that parental rights be terminated, and that
adoption be selected as the permanent plan. The social worker
wrote that S.D. and S.R.D. enjoy playing together and watching
movies and have a special bond that is apparent through their
interactions together. The report also stated that S.D. was strong
and healthy. S.R.D., who had been underweight and small for
her age, was now an active and growing toddler. Both children
continued to receive services to help them meet their
developmental milestones.
While the children made progress with their behavioral
health services, S.D. struggled after visits with father. For
example, S.D. would hit and kick, had bowel movements in his
pants, and was more needy of maternal grandmother. Once the
visits were reduced, S.D.’s behaviors decreased significantly. The
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social worker wrote that S.D. and S.R.D. have endured a lot of
loss and trauma in their short lives, but they have made progress
and gained stability due to maternal grandmother’s consistent
love, nurturing, and the secure environment she has created for
them. CASA submitted a memorandum in advance of the
hearing and joined in the department’s recommendation that
parental rights be terminated, and the children be freed for
adoption.
In March 2022, prior to the section 366.26 hearing, father
filed a section 388 petition requesting that the juvenile court
continue reunification services for another six months because he
was participating in his case plan, including DAS, parenting
education, and therapy to help him better parent his children.
In April 2022, at the combined hearing for father’s section
388 petition and the department’s 366.26 motion, father and the
social worker testified. The social worker, who qualified as an
expert in adoptions and permanency, testified that the children
were “generally adoptable” because they are young, healthy and
growing children with silly personalities. They were meeting
their developmental milestones with the assistance of service
providers. And in the event maternal grandmother was unable to
adopt the children, the department was aware of other relatives
who had expressed their desire to be an adoptive placement.
Father testified that he had engaged in services, was going
to his group and individual sessions, and had not recently tested
positive for substances other than marijuana. He expressed his
desire to be sober and meet the needs of his children.
After hearing oral argument, the juvenile court denied
father’s section 388 petition, found by clear and convincing
5
evidence that the children were adoptable, and terminated
parental rights.
Discussion
Father contends the juvenile court erred in terminating his
parental rights and finding the children adoptable. He also
contends there was a legal impediment to the adoption because
there was no evidence maternal grandmother had consent from
her estranged husband to adopt the children, which made it
unlikely they would be adopted in a reasonable time. These
contentions are without merit.
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. (§ 366.26, subd.
(c)(1); In re J.W. (2018) 26 Cal.App.5th 263, 266-267.) A child is
generally adoptable if the child’s age, physical condition, mental
state, and other factors make it likely that the child will be
adopted within a reasonable time by either a prospective adoptive
family or another family. (In re I.W. (2009) 180 Cal.App.4th
1517, 1526, disapproved on other grounds in Conservatorship of
O.B. (2020) 9 Cal.5th 989, 1010, fn. 7; In re Sarah M. (1994)
22 Cal.App.4th 1642, 1649-1650.) A child is specifically
adoptable “‘where the child is deemed adoptable based solely on
the fact that a particular family is willing to adopt him or her
. . . .’” (In re I.W., at p. 1526; accord, In re J.W., at pp. 267-268.)
To be considered adoptable, it is not necessary that a child
be in a potential adoptive home or that a prospective adoptive
parent is ‘“waiting in the wings.”’ (In re Sarah M., supra, 22
Cal.App.4th at p. 1649; In re Jennilee T. (1992) 3 Cal.App.4th
212, 223, fn. 11.) The “‘likely to be adopted’” standard is a “low
threshold.” (In re J.W., supra, 26 Cal.App.5th at p. 267.)
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We review the juvenile court’s finding of adoptability for
substantial evidence, viewing the evidence in the light most
favorable to the judgment, drawing every reasonable inference
and resolving all conflicts in the evidence in favor of the juvenile
court’s order. (In re Josue G. (2003) 106 Cal.App.4th 725, 732.)
“[W]hen reviewing a finding that a fact has been proved by clear
and convincing evidence, the question before the appellate court
is whether the record as a whole contains substantial evidence
from which a reasonable fact finder could have found it highly
probable that the fact was true.” (Conservatorship of O.B., supra,
9 Cal.5th at pp. 995-996.) An appellant challenging an
adoptability finding has the burden of showing the evidence is
insufficient to support the juvenile court’s finding or order. (In re
R.C. (2008) 169 Cal.App.4th 486, 491.)
Substantial Evidence of Adoptability
The juvenile court did not specify whether the children
were generally or specifically adoptable, however, substantial
evidence supports the juvenile court’s implied finding that the
children are generally adoptable. At the time of the section
366.26 hearing in April 2022, the children were just two and
three years old, so their ages are not an impediment to adoption.
The social worker described them as “generally adoptable”
because they were “young, healthy and growing children with
silly personalities.” And the department’s report indicated that
the likelihood the children would be adopted is “high” because
they are beautiful, smart, funny, and social.
The children also continued to meet their developmental
milestones. For example, S.D.’s dysregulation and behavioral
issues decreased after visits with father were reduced. S.R.D.’s
surgery to repair her cleft palate was successful but she would
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require routine medical check-ups every six months, until she
was 18 years old. The evidence also showed that the children
were thriving in the care of maternal grandmother, who wanted
to adopt them so she could provide them a stable and loving
home.
Father contends the children were not generally adoptable
but were instead “specifically adoptable” due to their “special and
unique needs,” as stated in the department’s report. He also
contends there was no evidence of other “approved or readily
available homes” willing to adopt both children in a reasonable
time.
First, as discussed above, the children’s physical,
behavioral, and mental health needs were improving by the time
of the hearing and did not take them out of the realm of being
“generally adoptable.” Second, the juvenile court had evidence of
additional relatives who expressed a desire to adopt the children
in the event maternal grandmother was unable to do so. The
willingness of the other relatives to adopt the children supports
the conclusion that the children are generally adoptable. (See,
e.g., Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.) Third,
the department was not required to have an “approved” or
“readily available home[]” in order for the children to be
considered generally adoptable. All that is required is clear and
convincing evidence of the likelihood that adoption will be
realized in a reasonable time. (In re A.A. (2008) 167 Cal.App.4th
1292, 1313; In re Sarah M., at pp. 1649-1650.)
The record in this case supports such a conclusion.
Father next contends the juvenile court “had a duty to
consider whether there was a legal impediment to adoption”
8
because there was evidence that maternal grandmother and her
husband were separated.
“‘When a child is deemed adoptable only because a
particular caretaker is willing to adopt, the analysis shifts from
evaluating the characteristics of the child to whether there is any
legal impediment to the prospective adoptive parent’s adoption
and whether he or she is able to meet the needs of the child.
[Citation]’ [Citation.].” (In re J.W., supra, 26 Cal.App.5th at pp.
267-268.) For example, a married, but separated person may not
adopt a child without the consent of the spouse. (In re Sarah M.,
supra, 22 Cal.App.4th at p. 1650, citing Fam. Code, § 8603.)
Here, the juvenile court “did not have a duty . . . to evaluate
whether there was a legal impediment to adoption by [maternal
grandmother]” because the social worker did not opine, and the
juvenile court did not find the children were adoptable based
solely on maternal grandmother’s willingness to adopt them. (In
re G.M. (2010) 181 Cal.App.4th 552, 564.) Moreover, if a child is
found to be generally adoptable, there is no need to inquire into
the suitability of a particular placement. (In re Carl R. (2005)
128 Cal.App.4th 1051, 1061-1062; In re A.A., supra, 167
Cal.App.4th at p. 1315.)
Even so, father’s challenge to the juvenile court’s
adoptability finding based on a legal impediment was not
properly preserved for appellate purposes. (See In re G.M.,
supra, 181 Cal.App.4th at pp. 563-564, citing In re S.B. (2004) 32
Cal.4th 1287, 1293 & In re R.C., supra, 169 Cal.App.4th at p. 493,
fn. 2.) Father did not object to the adequacy of the department’s
assessment, nor did he question the social worker or maternal
grandmother as to whether she in fact had her husband’s consent
to adopt the children. This might be a concern were the children
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only specifically adoptable. However, as we have explained,
substantial evidence supports a finding, by clear and convincing
evidence, that the children are generally adoptable.
Accordingly, the juvenile court did not err in terminating
father’s parental rights and ordering adoption as the appropriate
permanent plan.
DISPOSITION
The judgment (order terminating parental rights and
selecting adoption as the permanent plan) is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
BALTODANO, J.
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Margaret Johnson, Judge
Superior Court County of San Luis Obispo
______________________________
Jack A. Love, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rita L. Neal, County Counsel, Debra K. Barriger, Deputy
County Counsel, for Plaintiff and Respondent.