In re J.B. CA2/6 ( 2020 )

Filed 12/16/20 In re J.B. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 J.B. a Person Coming 2d Juv. No. B306805
Under the Juvenile Court Law. (Super. Ct. No. 19JV00210)
(Santa Barbara County)
SANTA BARBARA COUNTY
DEPARTMENT OF SOCIAL
SERVICES,
Plaintiff and Respondent,
v.
P.B.,
Defendant and Appellant.
P.B., the biological mother of J.B., appeals the
juvenile court’s order terminating her parental rights and freeing
her son, J.B., for adoption. (Welf. & Inst. Code, § 366.26).1 We
affirm.
All statutory references are to the Welfare and
1
Institutions Code.
Procedural History
Appellant suffers from bipolar disorder and
substance abuse (methamphetamine) that resulted in the May
31, 2019 detention of two-year-old J.B. Appellant was under the
influence of methamphetamine, shrieking, and suffering extreme
vacillating emotions. Nine days earlier, appellant was using
methamphetamine, physically abusing J.B., and threatened to
jump off a bridge with the infant. There were reports that
appellant left J.B. alone in a room for hours, strapped to a car
seat.
The trial court sustained a petition for failure to
protect (§ 300, subd. (b)(1)) and abuse of a sibling (§ 300, subd.
(j)), and bypassed services based on appellant’s failure to reunify
with a half-sibling (§ 361.5, subds. (b)(10) & (b)(11)). Services
were provided for the biological father who was homeless but
terminated at the six month review hearing for failure to follow
the case plan.
Appellant requested a contested permanent
placement hearing (§ 366.26), based on the theory that J.B. was
not adoptable, and was asked to submit an offer of proof. At the
366.26 hearing, appellant’s trial attorney said, “I’ve gone over the
reports and records, as well as delivered service logs. I was
unable to file an offer of proof.” Appellant submitted on the
section 366.26 report which recommended adoption. The trial
court found the evidence was clear and convincing that J.B. was
likely to be adopted and terminated parental rights.
2
Adoptability
Appellant contends the evidence does not support the
finding that J.B. is adoptable. (§ 366.26, subd. (c)(1).) “The
adoptability issue at a section 366.26 hearing focuses on the
dependent child, e.g., whether his or her age, physical condition,
and emotional state make it difficult to find a person willing to
adopt. [Citation.]” (In re A.A. (2008) 167 Cal.App.4th 1292,
1311.) Although a finding of adoptability must be supported by
clear and convincing evidence, it is low threshold test. (In re
K.B. (2009) 173 Cal.App.4th 1275, 1292.) “The [trial] court must
merely determine that it is ‘likely’ that the child will be adopted
within a reasonable time. [Citations.] . . . It is irrelevant that
there may be evidence which would support a contrary
conclusion. [Citation.]” (Ibid.) On review, we determine whether
the record contains substantial evidence from which the juvenile
court could find clear and convincing evidence the child was
likely to be adopted within a reasonable time. (In re Michael
G. (2012) 203 Cal.App.4th 580, 589; see Conservatorship of
O.B. (2020) 9 Cal.5th 989, 1011.)
Although J.B. suffered from delayed speech and
aggressive behaviors when first detained, he made substantial
progress after he was placed with the foster family. The section
366.26 report stated J.B. “is an adorable, charismatic, and loving
three-year-old child. Developmentally, [J.B.] has a known speech
delay, oppositional defiance, but has been receiving the
appropriate services to support him in his developmental and
emotional regulation. . . . He has been assessed to be adoptable
based on his age and limited concerned with his development.”
Appellant argues that the foster parents are not
committed to adoption, prospective adoptive parents have not yet
3
been identified. That is not the test. What is required is clear
and convincing evidence of the likelihood that J.B. will be
adopted within a reasonable time. (In re Zeth S. (2003) 31
Cal.4th 396, 406.) “The likelihood of adoptability may be
satisfied by a showing that a child is generally adoptable, that is,
independent of whether there is a prospective adoptive family
‘“‘waiting in the wings.’”’ [Citation.]” (In re A.A., supra, 167
Cal.App.4th at p. 1313.)
The cases cited by appellant are inapposite and
involve older children who required specialized placement
because of special needs (In re Asia L. (2003) 107 Cal.App.4th
498, 510-512), a nine-year-old child who required special care for
a prosthetic eye and had lived with his mother for six years (In re
Jerome D. (2000) 84 Cal.App.4th 1200, 1205-1207), and a special
needs group of three siblings that required special placement (In
re K.B., supra, 173 Cal.App.4th at pp. 1291-1292). Appellant
provides a laundry list of J.B. developmental problems but cites
no authority that these issues are so severe as to make the trial
court's finding of adoptability unsupported by the evidence. (In
re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) J.B.’s Court
Appointed Special Advocate reported that J.B. is “a happy,
rambunctious 3-year old” who is “very friendly and will greet you
with a huge smile while immediately trying to engage you into
playing with him.” He “is extremely inquisitive about
everything” and “has made tremendous improvement.” Everyone
agreed with that assessment: the therapist, J.B.’s doctor, the
social worker, and the caregivers. In May, an Oregon relative
expressed interest in adopting J.B., drove down to visit J.B., and
was still being assessed for the adoptive placement. There is no
requirement that an approved, prospective adoptive family be in
4
place before the trial court finds the child is likely to be adopted.
(In re A.A., supra, 167 Cal.App.4th at pp. 1313-1314.)
Appellant suggests that if an adoptive placement is
not made within a reasonable time, that J.B. could become a legal
orphan with no parent. That scenario has been mooted by the
section 366.26, subdivision (i)(3) which provides that if the child
is not adopted after the passage of at least three years from the
date the trial court terminated parental rights, and the child and
the social services agency agree that adoption is not likely, the
child may petition for reinstatement of parental rights. (See Cal.
Juvenile Dependency Practice (Cont.Ed.Bar 2020), § 7.28, p. 644.)
Disposition
The judgment (order terminating parental rights) is
affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
5
Arthur A. Garcia, Judge
Superior Court County of Santa Barbara
______________________________
Elizabeth C. Alexander, under appointment by the
Court of Appeal, for Defendant and Appellant.
Michael C. Ghizzoni, County Counsel, Lisa A.
Rothstein, Sr. Deputy, for Plaintiff and Respondent.