In re Z.S. CA3 ( 2020 )

Filed 11/20/20 In re Z.S. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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 Z.S., a Person Coming Under the Juvenile Court C091251
Law.
SACRAMENTO COUNTY DEPARTMENT OF (Super. Ct. No. JD238521)
CHILD, FAMILY AND ADULT SERVICES,
Plaintiff and Respondent,
v.
V.C.,
Defendant and Appellant.
1
Appellant V.C., mother of the minor, appeals from the juvenile court’s orders
terminating parental rights and freeing the minor for adoption. (Welf. & Inst. Code,
§§ 366.26, 395)1 She contends the court’s finding that the minor is adoptable was not
supported by substantial evidence. She adds the court erred by failing to find the
beneficial parental relationship exception to adoption applied. Disagreeing, we affirm.
BACKGROUND
On October 12, 2017, after unsuccessful informal intervention, the Sacramento
County Department of Child, Family and Adult Services (Department) filed a section 300
petition on behalf of the minor based on mother’s ongoing and untreated mental health
and substance abuse issues that endangered the minor’s safety. The then 20-month-old
minor had been placed into protective custody by law enforcement a few days before the
petition was filed after mother engaged in violent behavior in his presence and then drove
away with him unrestrained in her car. Mother had been living in her car with the minor.
Relatives reported that the minor was not always fed, slept much longer than normal for
his age, and banged his head against things. Mother had a substantial child protective
services history including referrals dating back to 2005.2 She exhibited volatile,
delusional, and paranoid behavior.
The minor was placed with a foster caregiver for three weeks; during this time
mother conducted body checks at visits and accused the visitation supervisor and foster
parent of physical abuse. All of the allegations were investigated and determined to be
unfounded; however, as a result of the frequent allegations, the foster parent requested
the minor’s removal. Thereafter, the minor was placed with relative caregivers.
However, a week later, on November 13, 2017, the minor had to be placed with a second
1 Undesignated statutory references are to the Welfare and Institutions Code.
2 Mother has other older children who are not the subject of this appeal.
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foster parent due to a shooting that had occurred at the relatives’ home, rendering them
unable to provide care for the minor.
Also in mid-November 2017, the visitation supervisor reported she was unable to
reach mother to schedule visits. As a result, no visits were scheduled from November 15
to November 29, 2017. Mother was also missing scheduled visits and arriving late,
which necessitated the requirement that she confirm visits in advance.
The juvenile court assumed jurisdiction and declared the minor a dependent child
in January 2018. Mother was ordered to participate in reunification services, including
dependency drug court, general counseling, a psychotropic medication evaluation and
monitoring, parenting education, an alcohol and drug assessment and compliance with all
recommendations of the assessment, and random substance abuse testing.
In the Department’s January 4, 2018 report, the social worker reported the minor
appeared comfortable in his placement with the (second) foster parent. The foster parent
had reported that the minor had temper tantrums, but that they had decreased from about
three times daily to once daily. On December 19, 2017, mother accused the foster parent
of sexual abuse and general neglect, which resulted in four police officers responding to
the foster parent’s home. After investigation by law enforcement and a doctor’s
examination, the allegations were deemed unfounded. The experience caused the foster
parent to request the minor be removed, but they later rescinded the request after
discussing the matter with the social worker.
Mother’s participation in visits through December 2017 and into January 2018
continued to be sporadic. She regularly failed to attend scheduled visits or arrived late.
Mother was also behaving aggressively toward the visitation supervisor. When mother
arrived more than 15 minutes late to the January 30, 2018 visit and saw the social worker
leaving the building to return the minor to his placement, mother “snatched” the minor
from the social worker’s arms. Multiple security guards and social workers had to
intervene.
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After mother’s behavior at visits improved, several observed (rather than
supervised) visits occurred in March and April 2018. But on April 13, 2018, mother
behaved in a hostile and physically aggressive manner toward the social worker, and her
visitation status was returned to supervised. When she hit a social worker at the next
visit, her visits were suspended until June 2018.
In June 2018, the social worker reported the minor’s tantrums had continued to
decrease in frequency to once or twice a week, and were shorter and less intense. The
minor’s daycare had raised concerns that the minor was biting other children and having
tantrums at school. This negative behavior was more significant after visits with mother.
The daycare also reported that the minor appeared more agitated and was harder to
redirect after visits with mother. The minor looked forward to visits with mother and
enjoyed the visits, but it was reported that, in addition to becoming agitated after
challenging visits with mother, he also would be defiant, have an upset stomach and/or
have emotional outbursts. The minor appeared well-bonded with mother and also had a
healthy attachment to the foster mother.
In September 2018, the Department reported that mother had relapsed in July
2018. Nonetheless, she had continued with services and had been visiting regularly since
visits were reinstated in June; she began unsupervised visits in October 2018. The visits
were going well, and mother was consistent in attending. The minor would say “I love
you” to mother at the end of visits and was transitioning back to the caregiver without
incident.
However, mother was continuing to use drugs and her visits returned to supervised
in late November 2018. In December the Department recommended termination of
services. Mother continued to miss tests and test positive for cocaine and
methamphetamine throughout mid-November 2018, December 2018, and January 2019,
and was dismissed from dependency drug court on January 29, 2019. A section 366.26
hearing was set for May 13, 2019.
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In January 2019, after a series of transitional visits, the minor was placed in the
home of a caregiver who was interested in adoption. Visits were reduced to two a month.
The minor was happy to see mother and appeared to enjoy the visits, which were
generally appropriate. The minor was in good health and, in May 2019 it was reported he
got along well with his peers at his daycare. But in September 2019, the minor displayed
some challenging behavior at daycare, including hitting staff and attempting to run off; he
was discharged from his daycare effective at the end of September. As a result, the minor
was seen weekly at U.C. Davis for evaluation for unruly behavior and tantrums.
He started at a new daycare in October 2019. A few days after he started, the
social worker reported she had seen him running around and crying while ignored by the
other children and staff. The caregiver stated he would ease the minor into the new
school routine. No further reports regarding difficulty at school were made.
The contested section 366.26 hearing took place in September and October, and
concluded on December 10, 2019. Mother testified the minor called her “mom,” told her
he loves her, and was excited, hyper and talkative at visits. He played with the toys she
brought and ate almost all the food she brought to visits. She testified he did not want
their visits to end, demonstrated by his unpacking his bag and putting his toys back on the
table, and playing like he was not yet done with the visit. The social worker testified that
the minor was continuing to adjust well in his prospective adoptive caregiver’s home.
Mother’s allegations of physical abuse and neglect against this current caretaker had been
investigated and deemed unfounded, and the social worker had no concerns about the
minor’s safety in the caregiver’s home.
The juvenile court found the minor adoptable and that no exception to adoption
applied. The court terminated parental rights and ordered adoption as the permanent
plan. Mother timely appealed.
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DISCUSSION
I
Adoptability
Mother first contends the orders terminating parental rights must be reversed
because there was insufficient evidence to support the juvenile court’s finding that the
minor is adoptable. She focuses on what she characterizes as a “severe and significant
decline” in his behaviors, arguing that “a previously adoptable child quickly became
unadoptable” after his transition to the new caregiver. We reject the claim of error.
A. The Law
“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).) “Although a finding of adoptability must be supported by clear
and convincing evidence, it [i.e., the determination that it is likely the child will be
adopted within a reasonable time] is nevertheless a low threshold.” (In re K.B. (2009)
173 Cal.App.4th 1275, 1292.)
Determination of whether a child is likely to be adopted focuses first upon the
characteristics of the child; thus, a finding of adoptability does not require that the child
already be in a suitable home or that there is “a proposed adoptive parent ‘waiting in the
wings.’ ” (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649 (Sarah M.).) On the other
hand, the fact that a prospective adoptive parent has shown interest in adopting a minor is
substantial evidence the minor is likely to be adopted within a reasonable time, either by
that parent or some other. (In re J.I. (2003) 108 Cal.App.4th 903, 911; In re Lukas B.
(2000) 79 Cal.App.4th 1145, 1154; Sarah M., at p. 1651.)
We review the juvenile court’s finding on this issue 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
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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.) If so, “[i]t is irrelevant
that there may be evidence which would support a contrary conclusion.” (In re K.B.,
supra, 173 Cal.App.4th at p. 1292.)
While the issue of adoptability usually focuses on the minor, “in some cases a
minor who ordinarily might be considered unadoptable due to age, poor physical health,
physical disability, or emotional instability is nonetheless likely to be adopted because a
prospective adoptive family has been identified as willing to adopt the child.” (Sarah M.,
supra, 22 Cal.App.4th at p. 1650.) “Where the social worker opines that the minor is
likely to be adopted based solely on the existence of a prospective adoptive parent who is
willing to adopt the minor, an inquiry may be made into whether there is any legal
impediment to adoption by that parent [citations]. In such cases, the existence of one of
these legal impediments to adoption is relevant because the legal impediment would
preclude the very basis upon which the social worker formed the opinion that the minor is
likely to be adopted. [Citation.]” (Ibid.)
The term “specifically adoptable,” therefore, denotes a child who but for the
existence of a prospective adoptive parent would not be adoptable. The suitability of the
prospective adoptive parent is not an issue when the child is generally adoptable, but it
may be placed in issue when the child is specifically adoptable.
B. Analysis
This is not a case where the juvenile court found the minor specifically adoptable;
the parties do not dispute that the court made a finding that general adoptability had been
proven by clear and convincing evidence. Mother’s challenge to this finding that the
minor is likely to be adopted within a reasonable time centers on what she characterizes
as the “severe and significant decline in [the minor’s] emotional state and behavior over
the year preceding the juvenile court’s termination of parental rights.” She speculates
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that this decline “does not bode well for [his] general adoptability,” because if his
“placement with the prospective adoptive father fails (or has already failed), his severe
behaviors requiring intensive services and therapy and resulting in expulsion from at least
one school are not likely to make it any easier for [him] to find a new adoptive
placement.”
Although it is certainly concerning that the minor’s emotional health has
fluctuated over his years in the dependency system, that fluctuation and emotional
turmoil is not at all unexpected given the circumstances under which the family finds
itself and the fact that the minor has had a number of different caregivers and daycare
experiences. Further, he was on the cusp of being reunited with mother when her
ongoing relapse ended the progress toward reunion. Because mother admits that the
minor “probably was an adoptable child before he was moved to his prospective adoptive
home in January 2019,” we focus on more recent events that mother now claims have
rendered him no longer likely to be adopted.
While it is clear that mother has blamed various caregivers for the minor’s various
physical and emotional issues, including the prospective adoptive parent at the time of the
challenged findings, the issue of adoptability focuses on the characteristics of the child
and whether there are problems such as “age, physical condition, and emotional state”
that would make it difficult to find a willing adoptive parent. (Sarah M., supra,
22 Cal.App.4th at p. 1649.) A finding of adoptability does not require that the child
already be in a preadoptive home. (§ 366.26, subd. (c)(1).) What is required is the
likelihood of adoption within a reasonable time. (In re Jennilee T. (1992) 3 Cal.App.4th
212, 223.)
The record does not reflect that events occurring after January 2019 have rendered
the minor unadoptable; in fact, the record is to the contrary. The most recent report
prepared for the hearing at issue here described the minor as “a somewhat shy, quiet, and
friendly child” who enjoyed going to the park and playing, cars and superheroes. He was
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reported to be physically healthy and was meeting developmental milestones. He
followed verbal directions and was encouraged by the caregiver to sing and communicate
verbally. There were no concerns regarding his mental health or intellectual status. He
generally got along well with peers at his daycare and had age appropriate tantrums at
school or home if he did not get what he wanted. Although it is true that during his first
few days at a new preschool, he was observed to be crying and ignored by peers and
staff, the record does not contain evidence that the then-three-year-old minor continued to
have behavior problems at the new school. The caregiver reported no concerns regarding
the minor’s behavioral or emotional functioning.
The Department concluded that, due to the minor’s young age, good health, and
lack of any significant developmental, educational and behavioral challenges, he is
adoptable. The juvenile court so found, and the evidence supports that finding. Further,
the fact that the current caregiver has shown interest in adopting a minor is substantial
evidence the minor is likely to be adopted within a reasonable time, either by that
caregiver or some other. (In re J.I., supra, 108 Cal.App.4th at p. 911; In re Lukas B.,
supra, 79 Cal.App.4th at p. 1154; Sarah M., supra, 22 Cal.App.4th at p. 1651.) Mother’s
arguments to the contrary are highly speculative.
Mother contends the evidence established that the minor was having tantrums that
were dangerous to his well-being and had developed these tantrums only after being
placed with his current caregiver. Thus, she argues, he now had such special needs that a
permanent caretaker would be difficult to locate. She points to two tantrums: a
September 2019 incident wherein the minor scratched his own face and an October 2019
incident where the minor was banging his head on the wall during the social worker’s
conversation with the caregiver.
Neither the frequency nor severity of these incidents renders the minor
unadoptable. The prospect that the minor may have some continuing behavioral
problems does not foreclose a finding of adoptability. (See In re Jennilee T., supra,
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3 Cal.App.4th at pp. 224-225.) Further, as we described at length above, the minor had a
history of tantrums, and their frequency had actually decreased significantly (from three
a day) since the time of his initial placement. The minor was participating in weekly
evaluations at U.C. Davis for his unruly behavior and tantrums. His behavior did not
render him unadoptable at the time of the juvenile court’s ruling, and any assertion that it
would do so at some point in the future is purely speculative.
II
Beneficial Parental Relationship Exception
Mother also contends the juvenile court erred by failing to find the beneficial
parental relationship exception to adoption applied. We find no error.
At the selection and implementation hearing held pursuant to section 366.26, a
juvenile court must choose one of the several “ ‘possible alternative permanent plans for
a minor child. . . . The permanent plan preferred by the Legislature is adoption.
[Citation.]’ [Citation.] If the court finds the child is adoptable, it must terminate parental
rights absent circumstances under which it would be detrimental to the child. [Citation.]”
(In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.)
There are only limited circumstances which permit the court to find a “compelling
reason for determining that termination [of parental rights] would be detrimental to the
child.” (§ 366.26, subd. (c)(1)(B).) Such circumstances include when “[t]he parents have
maintained regular visitation and contact with the child and the child would benefit from
continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(1) [beneficial parental
relationship exception].)
To prove that the beneficial parental relationship exception applies, the parent
must show there is a significant, positive emotional attachment between the parent and
child. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.) And even if there is
such a bond, the parent must prove that the parental relationship “ ‘promotes the well-
being of the child to such a degree as to outweigh the well-being the child would gain in a
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permanent home with new, adoptive parents.’ ” (In re S.B. (2008) 164 Cal.App.4th 289,
297, quoting In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.); accord, In re
Jasmine D. (2000) 78 Cal.App.4th 1339, 1345 (Jasmine D.).) “In other words, the court
balances the strength and quality of the natural parent[-]child relationship in a tenuous
placement against the security and the sense of belonging a new family would confer. If
severing the natural parent[-]child relationship would deprive the child of a substantial,
positive emotional attachment such that the child would be greatly harmed, the
preference for adoption is overcome and the natural parent’s rights are not terminated.”
(Autumn H., at p. 575.) On the other hand, “[w]hen the benefits from a stable and
permanent home provided by adoption outweigh the benefits from a continued
parent/child relationship, the court should order adoption.” (Jasmine D., at p. 1350;
Autumn H., at p. 575.)
“Because a section 366.26 hearing occurs only after the court has repeatedly found
the parent unable to meet the child’s needs, it is only in an extraordinary case that
preservation of the parent’s rights will prevail over the Legislature’s preference for
adoptive placement.” (Jasmine D., supra, 78 Cal.App.4th at p. 1350.) “ ‘Adoption is the
Legislature’s first choice because it gives the child the best chance at [a full] emotional
commitment from a responsible caretaker.’ ” (In re Celine R. (2003) 31 Cal.4th 45, 53,
quoting Jasmine D., at p. 1348.) The beneficial parental relationship exception to
adoption is an exception to the general rule that the court must choose adoption where
possible, and it “ ‘must be considered in view of the legislative preference for adoption
when reunification efforts have failed.’ ” (In re Celine R., at p. 53.)
The party claiming the exception has the burden of establishing the existence of
any circumstances that constitute an exception to termination of parental rights. (In re
C.F. (2011) 193 Cal.App.4th 549, 553.) The factual predicate of the exception must be
supported by substantial evidence, but the juvenile court exercises its discretion in
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weighing that evidence and determining detriment. (In re K.P. (2012) 203 Cal.App.4th
614, 622; In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315.)
We have noted above that mother’s visitation was often not “regular” as required
by statute to apply the exception at issue here, but even if we assume for the sake of
argument that mother met her burden to establish regular visitation with the minor, we
reject her argument that the exception applied here. Mother did not meet her burden to
establish that the minor had such a significant, positive emotional attachment to her that
the benefit of maintaining it outweighed the benefits the minor would obtain from
adoption. (See Autumn H., supra, 27 Cal.App.4th at p. 575.) Considering, as the juvenile
court must, factors such as the age of the child, the portion of the child’s life spent in the
parent’s custody, the positive or negative effect of interaction between the parent and the
child, and the child’s particular needs (In re Zachary G. (1999) 77 Cal.App.4th 799, 811),
the court did not err in determining the beneficial parental relationship exception to
adoption does not apply.
At the time of the section 366.26 hearing, the three-and-a-half-year-old minor had
been out of mother’s care for two years--over half of his short life. Although the minor
was described as “well bonded” with mother and enjoyed his visits with her, it is
undisputed that his negative behavior at school increased after some visits with mother
and that he was agitated, defiant, and prone to emotional outbursts and intestinal illness
after some of the more challenging visits with mother (where she was aggressive and
inappropriate with those in attendance). This is not the type of significant, positive
attachment that has been held sufficient to support an exception to the preference for
adoption. (Autumn H., supra, 27 Cal.App.4th at p. 575.) Simply put, mother has not
established this case to be “an extraordinary case” such that preservation of parental
rights must prevail over the Legislature’s preference for adoptive placement.
(Jasmine D., supra, 78 Cal.App.4th at p. 1350.)
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DISPOSITION
The orders of the juvenile court are affirmed.
/s/
Duarte, J.
We concur:
/s/
Mauro, Acting P. J.
/s/
Murray, J.
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