In re Edgar M. CA2/6

Filed 5/30/13 In re Edgar M. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 EDGAR M. el al., Persons Coming 2d Juv. No. B244882
Under the Juvenile Court Law. (Super. Ct. No. J1379615, J1379616,
J1379617)
(Santa Barbara County)
SANTA BARBARA COUNTY CHILD
WELFARE SERVICES,
Plaintiff and Respondent,
v.
MONICA M.,
Defendant and Appellant.
Monica M. (mother) appeals from the juvenile court orders terminating
parental rights to her son, Edgar, and establishing adoption as his permanent plan (Welf.
& Inst. Code, § 366.26).1 Mother contends that the finding of Edgar's adoptability is not
supported by substantial evidence.2 We affirm.
1
All statutory references are to the Welfare and Institutions Code unless otherwise
stated.
2
The juvenile court terminated mother's parental rights to Edgar's two sisters.
Mother appealed from all such orders. Her brief, however, challenges only those orders
that concern Edgar. The court also terminated the parental rights of presumed father,
Vidal M., who did not appear below, and has not appeared before this court.
BACKGROUND
In October 2010, 9-year-old Edgar lived in Santa Maria with mother and
his sisters, 7-year-old Ana, and 6-year-old Norma. Vidal M. (presumed father) did not
live with the family. On October 19, 2010, school personnel called mother because
Norma could not talk or move her right arm. When mother picked her up, Norma was
limping and making only one-word statements. Several hours later, mother took her to a
hospital in Santa Maria. The doctors concluded she had had a stroke. Further testing
revealed that Norma had several recent and older brain infarctions and a "non-accidental
trauma vertebral artery dissection" in her neck. The doctors concluded she was a child
abuse victim and contacted Santa Barbara County Child Welfare Services (CWS). CWS
received inconsistent information from mother and the children regarding Norma's
injuries. On November 1, 2010, CWS took the children into protective custody.
On November 3, 2010, CWS filed dependency petitions on behalf of Edgar,
Ana, and Norma, alleging failure to protect and support, with sibling abuse allegations as
to Ana and Edgar. (§ 300, subds. (a), (b), (g) & (j).)3 On November 4, the juvenile court
conducted detention proceedings and removed the children from mother's custody.
On January 20, 2011, the juvenile court found that the allegations of the
petitions were true, declared the children dependents of the court, and ordered that they
remain in out-of-home care. The court ordered supervised visitation for mother, and
family reunification services.
The CWS reports showed that while mother was affectionate during her
visits, she never progressed beyond supervised visitation. In December 2011, mother
upset Norma and Edgar by cutting a scheduled two-hour visit to one hour because Ana
was not attending. In January 2012, CWS reported that the children did not want to visit
mother without supervision until they were sure she would no longer get mad at them.
According to her therapist, mother lacked empathy and did not understand how her
behavior could impact the children. For example, during a visit, she told them their
3
CWS later dismissed the section 300, subdivision (a) allegations and accordingly
filed amended petitions, most recently on January 21, 2011.
2
father was killed in Mexico. She showed them a picture of her boyfriend, said he would
be their new father, and told them she was pregnant. For the next several weeks, Ana
refused to visit mother, and wanted the dependency court to order her adoption. In its
April 23, 2012 report, CWS advised the juvenile court that none of the children were
ready to live with mother, because they were unsure if she would still be mean to them.
On June 18, 2012, mother tried to kidnap Ana. Ana hid outside her foster home, crying
and trembling. She and Norma were never again willing to visit mother.
The CWS September 24, 2012, section 366.26 report recommended that the
court terminate parental rights and select adoption as the permanent plan for the children.
Edgar had lived in four foster homes. After Edgar lived in one foster home for seven
months, CWS placed him in a home with his sisters. When the parents in that home
could not meet the children's needs, CWS placed them in another foster home. Edgar
became increasingly aggressive toward Ana and Norma. On August 15, 2012, CWS
moved Edgar into a fourth foster home with concurrent planning parents who had wished
to adopt a son for many years. Edgar said that he felt like part of their family, and like a
"normal kid," and wanted them to adopt him if he could not return to mother.
On October 25, 2012, the parties appeared before the juvenile court and
submitted on the evidence in the section 366.26 report. The court found that it was likely
that Edgar, Ana and Norma would each be adopted, and ordered the termination of
parental rights.
DISCUSSION
Mother contends the juvenile court erred in finding Edgar to be adoptable.
More specifically, she argues that his behavior problems made it unlikely that any family
would be willing to adopt him. We disagree.
"'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. '" (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1561.) In making
the adoptability determination, the court focuses on whether the child's age, physical
condition, and emotional state make it difficult to find an adoptive home for the child.
3
(Ibid.) The existence of prospective adoptive parents is an important factor because their
willingness to adopt generally indicates the minor is likely to be adopted within a
reasonable time either by the prospective adoptive parents or some other family. (In re
Josue G. (2003) 106 Cal.App.4th 725, 733; see also In re Brandon T. (2008) 164
Cal.App.4th 1400, 1408.) Although the finding must be based on clear and convincing
evidence, we give the order the benefit of every reasonable inference and resolve any
evidentiary conflicts in favor of the order (the judgment). (In re Josue G., at p. 732; In re
Gregory A., at p. 1562.) Substantial evidence supports the court's finding of adoptability.
(In re Josue G., at p. 732.)
Edgar was a good student, in overall good health, with no developmental
problems. In arguing that his behavior made Edgar unadoptable, mother primarily
emphasizes his negative behavior in two foster care homes. She cites his lying, stealing,
hitting his sisters, and sharpening a branch to make a "knife," and his attempts to
manipulate his foster parents. (AOB 13-14.) Much of that behavior occurred after
mother tried to kidnap Ana, and after she bluntly told the children that their father had
been killed and that her boyfriend would be their new father.4
Moreover, mother discounts evidence that Edgar exhibited positive
behavior for much of his dependency, and asserts that like his prior foster parents, the
concurrent planning parents would soon reject him. The record does not support her
contention that Edgar's negative behavior is likely to reappear, or that his behavior is
likely to dissuade anyone from adopting him. Edgar stayed in his first foster home for
seven months, with no report that his foster family sought his removal. Before he was
placed in his concurrent planning home, Edgar had frequent visits with the family, and
they expressed their interest in adopting him. The foster parents told CWS that Edgar fit
into their family perfectly, and called their parents "abuelita and abuelito" (grandmother
and grandfather, in Spanish). According to his court appointed special advocate (CASA),
Edgar responded well to the considerable amount of structure in his concurrent planning
4
Father has been missing for over five years. His family has not received concrete
evidence of his death.
4
home. The CASA observed that Edgar seemed to enjoy being the youngest family
member and receiving attention from the family's two teenage daughters, as well as the
parents.
Mother suggests that the juvenile court had reservations regarding Edgar's
adoptability, as evidenced by the following statement it made on September 24, 2012:
"I did have some questions about adoptability for Edgar at this point." The record
indicates otherwise. The court's questions apparently concerned an error in a report.
Finally, mother claims that the order finding Edgar to be adoptable was premature, based
upon the absence of an adoption report, and incomplete information regarding Edgar in
the CWS reports. She forfeited such claims by failing to raise them in the juvenile court.
(See In re Brian P. (2002) 99 Cal.App.4th 616, 623.)
DISPOSITION
The orders finding Edgar to be adoptable and terminating parental rights are
affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P.J.
YEGAN, J.
5
Arthur A. Garcia, Judge
Superior Court County of Santa Barbara
______________________________
Jack A. Love, under appointment by the Court of Appeal, for Defendant
and Appellant.
Dennis A. Marshall, County Counsel, Maria Salido Novatt, Sr. Deputy
County Counsel, for Plaintiff and Respondent.
6