Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Fresno County No. 07CEJ300125-3, 07CEJ300125-4. Jane Cardoza, Judge.
Gino V. de Solenni, under appointment by the Court of Appeal, for Defendant and Appellant.
Kevin Briggs, County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Cornell, Acting P.J., Gomes, J. and Detjen, J.
Josephine H. (mother) appeals from an order terminating parental rights (Welf. & Inst. Code, § 366.26) to her sons, Dominic and Diego. Mother contends there was insufficient evidence to support a finding that these children were likely to be adopted. On review, we will affirm the juvenile court’s order terminating parental rights.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
In the spring of 2007, three-year-old Dominic and two-year-old Diego lived with their two much older siblings (siblings) and mother. The siblings gave detailed statements of physical abuse they suffered at mother’s hands. She hit the children with various objects, choked them, scratched them, threatened them and once held a knife to the neck of one of the siblings. Mother denied any abuse.
Consequently, Dominic, Diego, and their siblings were placed in protective custody and respondent Fresno County Department of Social Services (department) initiated the underlying dependency proceedings. The Fresno County Superior Court (juvenile court) exercised its dependency jurisdiction over the children based in large part on mother’s history of using inappropriate corporal punishment upon the children, who were afraid of her.
Following a contested dispositional hearing, the juvenile court adjudged the children juvenile dependents and removed them from parental custody. Despite more than 18 months of reunification services, neither parent was able to reunify with any of the children. Mother completed her services but continued to deny the physical abuse allegations and failed to address her history of domestic abuse.
As a result, in June 2009, the juvenile court terminated reunification services and set a section 366.26 hearing to select and implement a permanent plan for each child. Later in 2009, the juvenile court selected long-term foster care as its permanent plan for the siblings. Permanency planning for Dominic and Diego, however, was repeatedly postponed.
Permanency Planning Efforts
September 2009 Report
In the department’s original permanency planning report dated “09/18/2009, ” social worker Susan Quezada recommended adoption as the most appropriate permanent plan for Dominic and Diego (collectively, the boys). She also requested a 90-day continuance to identify a “risk adopt” family and terminate parental rights.
Nowhere in the record is the phrase “risk adopt” defined.
The boys were placed together in the same foster home, which was their first and only placement. Their foster mother was unwilling to adopt because “she can not [sic] predict what kind of children they will grow up to be and she is afraid they will have behavioral problems when they reach their adolescen[ce].” The department had made a risk adopt referral for the boys.
As early as December 2007, the foster mother indicated she was unwilling to provide adoption or long term care for the boys.
According to Quezada, the boys were healthy and developmentally on target. They were also able to form positive attachments. They shared a healthy sibling relationship and had never been separated. Quezada considered the boys adoptable.
Dominic, who was then five years old, had started kindergarten and was having some behavioral problems at school. He had been receiving individual mental health treatment, including individual play therapy. His presenting problems included symptoms of temper tantrums, defiance and lying. Dominic responded to the play therapy. His therapist observed a decrease in the level of his aggression and violence. The foster mother also reported a reduction in Dominic’s symptoms. The therapist was interested in discharging Dominic because his symptoms were reduced. However, Quezada asked the therapist to continue working with Dominic to help prepare him for a change in placement.
Diego was four years old and attending a head start program. He was doing well and getting along with the other children. As the class size increased, he began having some behavioral problems but was adjusting.
Diego also had been receiving mental health treatment. His symptoms included aggressiveness, impulsiveness, inattention, tantrums, and poor social skills. According to his therapist, Diego had made slight progress in reducing his symptoms. Based on the therapist’s recommendation, the foster mother began attending parenting classes. The therapist encouraged the foster mother to incorporate what she was learning at home and to set consistent limits with Diego.
Because one of the parents requested a contested section 366.26 hearing, the court continued the hearing, originally set for September, until December 2009. It also reduced mother’s visits with the boys to once a month.
Mother appealed this order. In In re O.H. (Sept. 16, 2010, F059123 [nonpub. opn.]), this court affirmed the juvenile court’s decision.
December 2009 Report
In an addendum report dated “12/04/2009, ” social worker Quezada described some improvement in the boys’ behaviors since they stopped having weekly visits with mother. Both the foster mother and Quezada noticed the improvement. Quezada observed Dominic playing independently in one room with his toys while Diego sat next to Quezada and quietly played with her keys and cell phone. In previous visits to the foster home, Quezada saw the boys fighting and Diego climbing furniture and over the foster mother.
Quezada asked the court to vacate the section 366.26 hearing date and reset the hearing in 60 or 90 days. Although Quezada offered no explanation for her request, the department’s court officer, at the December 2009 hearing, represented that the boys had been matched with, but had yet to be presented to, the adoptive family. The additional time would permit visitation to ensure the family was a match for the boys. The court continued the matter to a March 2010 date.
March 2010 Report
In an addendum report dated “03/19/2010, ” social worker Quezada requested a 60-day continuance. The department had been unable to place the boys with the adoptive family that it previously identified. After apparently two visits, the family was unable to move forward with future visits and placement. Diego was very disruptive in the family’s home. The family did not believe he would be able to blend with their family.
The boys had a “meet and greet” visit with a second family in early March 2010. During that visit, the boys were appropriate and Diego did not become defiant. The second family needed more time to review the information and material provided. In addition, Diego was scheduled to be assessed for an Individualized Education Plan (IEP).
Although Quezada still considered the boys adoptable, she characterized them as “difficult to place, ” citing “some concerns regarding Diego’s behavior.” Quezada noted in particular that Diego was scheduled to attend preschool for four hours, but that schedule had been reduced to two hours due to his disruptive behavior and failure to respond to redirection. Also on some occasions, the preschool called the foster mother about an hour after school started because it was unable to control Diego.
The juvenile court continued the hearing another 60 days for the department to locate an adoptive home for the boys.
May 2010 Report
In an addendum report dated “05/21/2010, ” social worker Quezada asked permission to use child-specific recruitment efforts and list the boys on an adoption exchange in order to locate an appropriate adoptive family for them. This would allow the department to expand its recruitment efforts throughout California. She also requested that the court find the boys were likely to be adopted and terminate parental rights.
By then, Dominic was six years old and his behaviors had greatly improved. He responded to redirection and his school behavior improved. The foster mother no longer received phone calls from Dominic’s school regarding his behavior. Quezada had also observed the improvement in Dominic’s behavior in the foster home and during visits. With Dominic’s improved behavior, Quezada opined it would be easier to match him and Diego to a risk adopt family.
Diego, who had turned five years old, was receiving needed services to address his previous behaviors, which made it challenging to match him with a risk adopt family. He recently had an IEP and, as a result, was receiving services to help him with his inattention, distractibility and high activity level. In addition, Diego had been diagnosed with ADHD and there was a pending request with the court for medication to help him control his behavior.
The number of phone calls from school regarding Diego’s behavior had decreased. In addition, his number of consistent “good” days had increased on a weekly basis. Quezada also observed Diego in the home and during visits. Although he continued to challenge mother during visits, the number of incidents had decreased. Diego was also more cooperative.
Quezada also reported that the second family matched with the boys in March 2010 had declined placement. The family had unrealistic expectations of the boys. It also wanted the boys assessed in areas about which the department did not have concerns and wanted all assessments completed and their diagnoses known.
By the time of the May hearing, the court had relieved the boys’ counsel and appointed a new attorney who needed additional time to prepare. Also, mother’s attorney wanted the case set for trial. The court continued the hearing once again, this time to early July 2010. It meanwhile granted the department’s request to use child-specific recruitment efforts to find an adoptive family. Also, in June 2010, the court authorized the department’s medication application on Diego’s behalf.
July 2010 Report
In her final addendum reported dated “07/09/2010, ” Quezada reported the boys were placed in a foster family agency home in mid-June. They were doing well in their transition and there were no concerns.
In the boys’ prior placement, the foster mother’s husband did not involve himself in the boys’ daily care nor did he interact with them. The foster mother believed the boys would benefit from a two-parent household with a positive male role model in the home. The new foster family agency home fit that description.
On July 6, Quezada visited the boys in their new placement. They appeared happy and excited to show the social worker their new bedroom. They had helped paint it. They also were excited to describe their July 4th weekend.
During the July 6 visit, Quezada also spoke with the new foster parents. They believed the department’s information about the boys’ behaviors was inaccurate. The boys did not have behavioral problems in these foster parents’ estimation. The boys played like other children did and did not disrupt the new foster family’s home or routine. The boys were “really good kids” who had learned “lots of” positive habits in their former foster home.
The foster mother told Quezada that Diego responded to redirection, structure and rewards. The foster parents had been firm with the boys, especially Diego. The foster father had observed that Diego liked to make Dominic mad and would test limits. However, it was not anything out of the ordinary when compared to other children. The foster father said he told the boys the rules of their home. When the boys broke rules, he simply asked them what the rules were and they corrected their behavior.
In addition, the foster father recently took Diego for his medication appointment. The foster father told the doctor that he (the foster father) did not see in Diego the behaviors described at the time of placement. Reportedly, the foster father and the doctor agreed there was not a need for ADHD medication and Diego was not given a prescription. He would be reassessed after he began school.
In the foster parents’ view, a child who had ADHD did not respond to consequences and rewards and could not control his or her behavior to avoid negative consequences and to earn a reward. Diego, on the other hand, demonstrated he could positively respond to consequences and rewards.
Quezada also observed the positive improvement in the boys’ behavior during the boys’ monthly visit with their father after the change in placement. The boys did not need redirection, followed directions, and accepted no as an answer. There was no need to negotiate with them, to explain why or to repeat directions to them more than once.
Quezada concluded her report with an expression of confidence that the department would be able to find the boys a risk adopt family.
July 2010 Section 366.26 Hearing
Mother’s attorney called witnesses in an apparent effort to persuade the court that termination would be detrimental to the boys. Counsel’s focus eventually shifted to contesting the boys’ adoptability.
Psychologist Dr. Laura Geiger had conducted a bonding study regarding the boys in 2009. She observed them with mother in August 2009. In her report, the psychologist concluded mother and the boys did not have a parent/child relationship.
Dr. Geiger testified Dominic’s reported behaviors at the time of her assessment were very amenable to treatment and not chronic. To change Dominic’s behaviors could take as short as six months or up to three years. Diego’s reported behaviors at that time were also amenable to treatment in the same way and in the same timeframe. With “appropriate parenting skills by a foster parent, ” Dr. Geiger would expect the boys’ reported behaviors to improve.
Quezada, who had a master’s degree in social work, was charged with assessing the most appropriate permanent plan for the boys. She was assigned the case in June 2009.
She testified the boys’ long-term foster placement had ended in June because the foster mother had a serious medical issue. While in her care, the boys exhibited various kinds of negative behaviors. That was the case until approximately March 2010.
The department was now confident it could find the boys a risk adopt family. However, the boys’ new placement was not a risk adopt home. When the boys needed the change in placement, Quezada told the foster family agency that this was going to be a foster placement.
The new foster family had not indicated a willingness to adopt the boys. Quezada attributed this to the family’s understanding that the placement was a foster care placement, as well as the fact that the boys had only been in their home for three weeks.
Nevertheless, the department was confident that it would find a risk adopt family for the boys because they had gradually made “huge, tremendous behavior improvements.” So long as Quezada had the case, there had been constant improvement and no regression in the boys’ behavior.
There had been concerns about their behavior when, in September 2009, the department first characterized the boys as adoptable. As of March 2010, however, Dominic remained ready to be discharged from his therapy and, as his school year progressed, his struggles decreased. Phone calls from the school had stopped. According to the former foster parent, there was decreased sibling fighting. Also, once Diego’s IEP was in place and he received one-on-one time in school, his behavior improved.
Quezada had also observed the boys’ behavioral changes. She noticed at a recent visit between the boys and the father that the boys arrived holding the care provider’s hands. Previously, the former foster mother could not hold their hands nor could mother or even Quezada. They would pull away, and it was a tug. Now, the boys were cooperative, talking, walking and laughing. Quezada also repeated the observations she made when she recently visited the new foster family’s home. She added that Diego’s IEP noted he would respond positively to rules, rewards, structure, and one-on-one time. The new foster family was implementing the IEP’s recommendations and Diego was responding.
In Quezada’s opinion, Dominic benefited from being a little older now, as well as being in school. School provided a daily schedule with structure. Dominic was also around other children and learning how to socialize and interact. Diego benefited from his school working with him and being patient. Also, the boys benefited from the reduction in their visits with mother. Quezada still believed and was strongly confident that the boys were adoptable and the department would be able to find them an adoptive home.
Following closing arguments, the juvenile court took the matter under submission. When the proceedings resumed, the court announced that it had read and considered the department’s five permanency planning reports, as well as considered the testimony presented. It found clear and convincing evidence that the boys were likely to be adopted. It specifically found that there had been a significant improvement in the boys’ behaviors. The court terminated parental rights.
DISCUSSION
Mother contends there was insufficient proof to support the juvenile court’s finding by clear and convincing evidence that the boys were adoptable. According to her, given the boys’ history of behavioral problems, there should have been evidence of approved families interested in adopting similar children. Evidence that the boys were healthy and developmentally on target did not suffice in her view. Mother also pinpoints the evidence that the former foster mother and the previous two families matched with the boys were unwilling to adopt the boys as proof that they were not adoptable. She is also dismissive of the evidence of the boys’ improved behaviors and of Quezada’s opinion that they were adoptable. On review, we disagree with mother.
Before a court may terminate parental rights, it must find by clear and convincing evidence that it is likely the dependent child will be adopted. (§ 366.26, subd. (c)(1).) The adoptability question 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. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) It is not necessary that the child already be in a potential adoptive home or that there be a proposed adoptive parent “waiting in the wings.” (In re Jennilee T. (1992) 3 Cal.App.4th 212, 223, fn. 11.)
Although the juvenile court must make its adoptability finding by clear and convincing evidence (§ 366.26, subd. (c)(1)), the “clear and convincing” standard of proof is not a standard for appellate review (Crail v. Blakely (1973) 8 Cal.3d 744, 750). The sufficiency of evidence to establish a given fact, where the law requires proof of the fact to be clear and convincing, is primarily a question for the trial court to determine, and if there is substantial evidence to support its conclusion, the determination is not open to review on appeal. (Ibid.)
Here, there was substantial evidence of the boys’ adoptability. In large part, mother relies on the evidence contained in Quezada’s early permanency planning reports about the boys’ behavior problems and the department’s unsuccessful efforts to place them for adoption as of early March 2010. Had the record stopped at that stage, mother might well have a point, despite Quezada’s reasoned opinion that the boys were adoptable.
However, mother brushes aside the evidence of the boys’ tremendous improvement and in particular the breakthroughs made regarding Diego starting in March 2010. This improvement was consistent with the testimony of mother’s own witness, Dr. Geiger, who opined that the boys’ behaviors were amenable to treatment and could be ameliorated in as little as six months. Here, at approximately seven months after Dr. Geiger’s observation, the boys’ behaviors showed definite and increasing improvement, without any signs of regression.
Consequently, by the time of the July 2010 hearing, the court had before it two young boys who were not only healthy and developmentally on target, but who also had greatly improved their behaviors and shown they responded positively to rules, rewards, structure, and, in the case of Diego, one-on-one time.
We reject mother’s claim that there must be evidence of approved families, who are available and willing to adopt children, such as the boys. The cases she cites, In re Scott M. (1993) 13 Cal.App.4th 839 (Scott M.), In re Asia L. (2003) 107 Cal.App.4th 498 (Asia L.), and In re Jerome D. (2000) 84 Cal.App.4th 1200 (Jerome D.), are factually distinct from this case and do not stand for such a position. Each of those decisions involved scenarios in which a social worker’s adoptability opinion was based in part on the existence of either a prospective adoptive parent or someone who had expressed an interest in adoption.
In Scott M., supra, 13 Cal.App.4th at page 844, the appellate court prohibited inquiry into a prospective adoptive family’s suitability.
In Asia L. the dependent children had serious emotional and behavioral problems and were not in an adoptive placement. At most, their foster parents were willing to explore the option of adoption. (In re Asia L., supra, 107 Cal.App.4th at p. 512.) The Asia L. court considered such evidence “too vague” to support an adoptability finding. (Ibid.)
In Jerome D., supra, 84 Cal.App.4th at page 1205, the appellate court reversed an adoptability finding based on the willingness of a child’s stepfather to adopt him. The Jerome D. court held such evidence would not suffice because the adoption assessment failed to address the stepfather’s criminal and CPS history, which was not insubstantial, as required by section 366.22, subdivision (b)(4).
That was not the case here. Quezada based her opinion on the boys’ ages, good health, being on track developmentally, as well as their tremendous behavioral improvements since she last tried to match them with an adoptive family. We conclude the juvenile court properly found the boys were likely to be adopted.
DISPOSITION
The order terminating parental rights is affirmed.