Opinion
G056260
10-22-2018
In re E.R., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. V.M., Defendant and Appellant.
Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputies County Counsel, for Plaintiff and Respondent. No Appearance for the Minor.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17DP0111) OPINION Appeal from an order of the Superior Court of Orange County, Gary L. Moorhead, Judge. Affirmed. Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputies County Counsel, for Plaintiff and Respondent. No Appearance for the Minor.
INTRODUCTION
Vanessa M., the mother of minor E.R., appeals from an order of the juvenile court terminating her parental rights under Welfare and Institutions Code section 366.26. The court found that E.R. was likely to be adopted. Vanessa disagrees and points to E.R.'s numerous and severe physical challenges as precluding general adoptability. She further asserts that it was too soon to find him specifically adoptable because he had been with his prospective adoptive family for only a few months.
All further statutory references are to the Welfare and Institutions Code.
We affirm. The juvenile court had sufficient evidence upon which to base its finding of general adoptability. Although it is certainly true that neither E.R. nor his adoptive parents, whoever they may be, will have an easy life, the fact that a family came forward to claim him so soon after Orange County Social Services Agency (SSA) sought to place him for adoption and the family's eagerness to make him a permanent member are evidence that he is generally adoptable, even if this particular placement does not work out.
FACTS
A hospital hold was put on E.R. at birth after he and Vanessa tested positive for amphetamine and methamphetamine. Vanessa had used methamphetamines in the early morning on the day of E.R.'s birth and gave birth in the ambulance on the way to the hospital. At the time of E.R.'s birth, Vanessa had five other living children, who were dependents of the Los Angeles Superior Court. They were in the process of being adopted. Another child had died at age 10 months.
It soon became apparent that a positive drug test was the least of E.R.'s problems. Within about a week of his birth, he had open-heart surgery to correct a congenital heart defect. Although the surgery was successful, E.R. made a slow recovery. At the end of February 2017, when E.R. was about a month old, a gastric feeding tube was installed. In early March, he had an operation on his colon.
Vanessa was present at the hospital during the heart surgery, but she disappeared afterward. The staff could not reach her to get her permission for other procedures. Although granted visitation at the dependency hearing, Vanessa never took advantage of the opportunity.
At some point in February 2017, genetic testing was performed. E.R. had a severe chromosomal abnormality that caused deformities in addition to the heart defect that had required surgery shortly after his birth. The chromosomal defect put him at risk for intellectual disabilities, seizures and other neurological problems, as well as aspiration. He also had renal problems, a brain hemorrhage, and vocal cord paralysis. The genetic defect in its severe form is also known to cause eye and genitourinary abnormalities, skeletal malformation, and autism. In addition, the doctors noted that E.R. had been exposed to drugs in utero, so other behavioral and cognitive problems could be expected besides those caused by the defective chromosome.
Despite multiple attempts by the hospital staff and social workers, Vanessa could not be found. As of early April, her whereabouts were unknown. She was finally located in jail, having been arrested on April 7, 2017.
E.R. was placed in foster care on March 15, 2017.
Vanessa named Victor R. as E.R.'s father. Victor was in prison. At the detention hearing on March 6, 2017, which Vanessa did not attend, he denied absolutely that he was E.R.'s father. A paternity test ultimately confirmed his denial, and Vanessa was unable to suggest another candidate until several months later.
Vanessa appeared at the jurisdiction hearing on May 8, since she was in jail. She pleaded no contest to the allegations of the petition, and E.R. was made a dependent of the court. Disposition was continued. Vanessa was allowed two visits per month while she was incarcerated.
E.R. made good progress in foster care, especially considering his start in life. He was somewhat delayed, but had an easygoing and "mellow" disposition. As of May 2017, he was being followed by a cardiologist; a neurologist; an ophthalmologist; an ear, nose, and throat specialist; and a pediatrician. He was still being fed through a gastric tube.
While Vanessa was in jail, the court issued a disposition order on May 26, vesting custody with SSA. The termination of parental rights hearing was set for September 20. By this time, Vanessa had come up with another name for E.R.'s father, and the court ordered a search for him. The search was unsuccessful.
In September 2017, E.R. had an operation to replace his gastric tube and an operation on his tongue. In February 2018, at 13 months, E.R. had a chest tube inserted in his lung to determine whether he had lung disease. He also had a CT-scan of his chest.
At the permanency hearing, which took place on September 20, 2017, SSA reported that E.R. was adoptable but difficult to place because of his medical issues. Vanessa's counsel objected that he was not adoptable. The court ordered SSA to search for a suitable concurrent home and continued the permanency hearing to March 1, 2018. A due diligence search for Vanessa, begun in early February, was unsuccessful.
Vanessa was by this time out of jail. She did not attend the hearing. --------
E.R. was placed in a prospective adoptive home on November 6, 2017. The prospective parents had a newborn of their own, and the father was taking time off work to care for both babies. The mother had impaired vision and used a guide dog. She had obtained a B.A. and a teaching credential in special education and was working on a master's degree in special education. She had worked full time as a classroom teacher for disabled children since 2015 and was taking time off to care for her new baby and for nine-month-old E.R.
The couple wanted to adopt E.R. They told SSA they "adore [E.R.] and can't imagine not having him in our lives every day." The prospective parents were able to manage E.R.'s numerous appointments with doctors and therapists as well as his hospital procedures.
After being placed in the home of the prospective adoptive parents, E.R. learned to stay in a sitting position and started crawling. He also started to pull himself up to stand. SSA reported that E.R. was happy and well adjusted in his new home.
The continued permanency plan hearing took place on March 1, 2018. Vanessa was not present, and her counsel had been unable to contact her, despite calling her "numerous times." So far as our record indicates, she had not seen E.R. since his heart surgery in February 2017. The court found that E.R. was likely to be adopted and "both [generally] and specifically adoptable." Vanessa's parental rights were terminated, as were the rights of the "unknown father."
DISCUSSION
We review the juvenile court's findings of adoptability for sufficient evidence. (In re Josue G. (2003) 106 Cal.App.4th 725, 732.) We afford the findings the benefit of every reasonable inference and resolve evidentiary conflicts in the judgment's favor. (In re B.D. (2008) 159 Cal.App.4th 1218, 1232.)
Section 366.26, subdivision (c)(1), provides in pertinent part: "If the court determines . . ., 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." "The issue of adoptability posed in a section 366.26 hearing focuses on the minor, e.g., whether the minor's age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. [Citations.] Hence, it is not necessary that the minor already be in a potential adoptive home or that there be a proposed adoptive parent 'waiting in the wings.' [Citations.] [¶] Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor's age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parent's willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family. [Citation.]" (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650.)
"Although a finding of adoptability must be supported by clear and convincing evidence, it is nevertheless a low threshold: The court must merely determine that it is 'likely' that the child will be adopted within a reasonable time. [Citations.] We review that finding only to determine whether there is evidence, contested or uncontested, from which a reasonable court could reach that conclusion. It is irrelevant that there may be evidence which would support a contrary conclusion." (In re K.B. (2009) 173 Cal.App.4th 1275, 1292.)
I. General Adoptability
In this case, sufficient evidence supported the juvenile court's conclusion that E.R. was generally adoptable, despite his numerous disabilities. The court ordered SSA to find a prospective adoptive home for him in late September. By early November, he had been placed with a family that was more than willing to adopt him. This is strong evidence that E.R. is generally adoptable.
Vanessa's heavy reliance on In re Carl R. (2005) 128 Cal.App.4th 1051 (Carl R.), does not assist her. The minor in Carl R. was profoundly disabled, and all parties agreed he was adoptable only because a specific family wanted to adopt him. (Id. at p. 1061.) The issue of general adoptability never arose in that case.
In this case, however, the court found that E.R. was generally adoptable, basing this conclusion on the nature of his disabilities, the speed with which SAA found a prospective adoptive home for him, on the ability of the parents to meet his needs, and on his young age, attractive features, and sweet, responsive disposition.
Vanessa argues, illogically, that E.R. is not generally adoptable because SSA identified only one family willing to adopt him. Of course SSA identified only one family because once it found a family willing to adopt, it ceased looking. No evidence indicated this was the only family willing to adopt among many possible families. The speed with which SSA was able to locate a family willing to take a child with E.R.'s disabilities - about six weeks - is impressive.
It is not true, as Vanessa maintains, that the court based its finding of general adoptability solely on the evidence of one family's willingness to adopt him. But even if the court had based its finding on one family's willingness to adopt E.R., "it is only common sense that when there is a prospective adoptive home in which the child is already living, and the only indications are that, if matters continue, the child will be adopted into that home, adoptability is established. In such a case, the literal language of the statute is satisfied, because 'it is likely' that that particular child will be adopted." (In re Jayson T. (2002) 97 Cal.App.4th 75, 85, overruled on other grounds in In re Zeth S. (2003) 31 Cal.4th 396.)
Vanessa bases her argument that E.R. was not generally adoptable on his disabilities on the fact that only one family was willing to adopt him. She had no other arguments against general adoptability. The juvenile court had ample evidence that E.R. was generally adoptable, despite his disabilities, if not by the family that was currently caring for him then by some other family.
II. Specific Adoptability
Vanessa also argues that E.R. is not specifically adoptable. She bases this argument on the relatively short time the prospective adoptive parents cared for E.R. before the termination hearing (November 2017 to March 2018) and on the age of those parents' child abuse and criminal checks.
Because we agree with the juvenile court that E.R. is generally adoptable, we need not consider whether he is also specifically adoptable. (See In re R.C. (2008) 169 Cal.App.4th 486, 494.) Were we to consider specific adoptability, we would observe that Vanessa has presented no evidence of a legal impediment that would stand in the way of adoption. (See In re Sarah M. (1994) 22 Cal.App.4th 1642, 1650 [parent must be 10 years older than child, consent of spouse necessary, consent of child over age of 12 necessary, with code citations].)
Instead, Vanessa argues that E.R. is not specifically adoptable because the prospective parents had cared for him for only a relatively short time; therefore neither the court nor SSA could gauge whether they would be able to meet E.R.'s special needs over the long haul. She also objects that their criminal and child abuse checks are over two years old and therefore unreliable. Neither of these arguments against specific adoptability is based on a legal impediment to adoption, and neither is persuasive.
DISPOSITION
The order terminating Vanessa's parental rights is affirmed.
BEDSWORTH, ACTING P. J. WE CONCUR: MOORE, J. ARONSON, J.