Opinion
E075853
03-24-2021
In re J.B. et al., Persons Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. B.B. et al., Defendants and Appellants.
Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and Appellant, B.B. Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant, J.B. Gregory P. Priamos, County Counsel, James E. Brown, Anna M. Marchand and Prabhath D. Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIJ1900201) OPINION APPEAL from the Superior Court of Riverside County. Donal B. Donnelly, Judge. (Retired judge of the Imperial Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and Appellant, B.B. Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant, J.B. Gregory P. Priamos, County Counsel, James E. Brown, Anna M. Marchand and Prabhath D. Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
I. INTRODUCTION
On October 1, 2020, following a hearing pursuant to Welfare and Institutions Code section 366.26, the juvenile court entered an order terminating the parental rights of B.B. (Mother) and J.B. (Father) with respect to their twin children, Jv.B. and Jz.B. (the twins, collectively). Mother and Father appeal from this order, challenging only the sufficiency of the evidence to support the juvenile court's finding that the twins were adoptable. We conclude the record contains substantial evidence in support of the juvenile court's finding and affirm the order.
Undesignated statutory references are to the Welfare and Institutions Code.
II. FACTS AND PROCEDURAL HISTORY
A. The Twins Become Dependents
Mother and Father are the parents of the twins. In April 2019, when the twins were approximately five months old, the Riverside County Department of Public Social Services (DPSS) received a report that Mother and Father had previously had four children removed from them in the State of Illinois for abuse and neglect, and that they had fled to California to give birth to the twins in order to avoid the intervention of social workers. After unsuccessful attempts to obtain Mother and Father's cooperation in checking on the twins' welfare, the twins were ultimately surrendered to DPSS by their paternal grandmother on April 15, 2019.
On April 17, 2019, DPSS filed a petition on behalf of the twins pursuant to section 300 et seq. On September 5, 2019, an amended petition was filed, alleging the inability of both Mother and Father to supervise, protect, or provide regular care for the twins under section 300, subdivision (b)(1).
On September 26, 2019, the juvenile court held a contested jurisdictional and dispositional hearing on the petition. Following the hearing, the juvenile court sustained the allegations of the petition; ordered the twins removed from Mother and Father's custody; denied reunification services pursuant to section 361.5, subdivision (b)(6) and (11); and set the matter for a permanency planning hearing pursuant to section 366.26. B. The Section 366 .26 Report and Addendums
1. The January 13, 2020 Section 366.26 Report
On January 13, 2020, DPSS filed a selection and implementation report pursuant to section 366.26. The report detailed that Jz.B. was one year of age. A review of his medical history and condition by a public health nurse indicated he was currently experiencing constipation and teething syndrome, but he was otherwise not considered medically fragile. He had previously experienced gastrointestinal reflux and an infection, but those issues had resolved and he was no longer on any medications. His physical growth was within normal range and a mental health screening determined he did not currently require mental health services. However, Jz.B. was not meeting all of his developmental goals at the time.
With respect to Jz.B.'s developmental delays, the section 366.26 report referenced a prior addendum to DPSS's jurisdictional/dispositional report submitted on September 5, 2019. This addendum set forth that Jz.B. experienced an approximate 33 percent delay in the development of his communication and fine motor skills.
With respect to Jv.B., the report detailed that she was considered a child with special health care needs pursuant to section 17710. Specifically, Jv.B. was considered nutritionally compromised because she experienced difficulty eating due to gastrointestinal reflux disease, milk/protein interference, and difficulty swallowing solid foods. Jv.B. was diagnosed with tongue tie and oral aversion, and she was referred to speech therapy, occupational therapy, and physical therapy to address these issues. Following an assessment, she was not deemed to need mental health services.
Finally, the report detailed that multiple family members had initially expressed interest in having the twins permanently placed with them; DPSS had initiated an interstate compact on the placement of children (ICPC) referral to its counterpart in Illinois to evaluate whether placement with out-of-state family members would be appropriate; and DPSS was notified that its ICPC referral had been closed in November 2019. After placement with family members proved unsuccessful, adoption workers identified caregivers will to adopt but were still in the process of completing disclosures and arranging for preplacement visitations to assess their suitability for placement of the twins. As a result, DPSS requested a 120-day continuance of the section 366.26 hearing to complete the placement process.
2. The May 12, 2020 Addendum
On May 12, 2020, DPSS submitted an addendum to its initial section 366.26 report. The report identified a maternal cousin in Illinois who continued to express interest in adopting the twins and, as a result, DPSS renewed its ICPC referral to Illinois, requesting a home evaluation. However, by this time, ICPC referrals to Illinois were subject to significant delays as a result of the COVID-19 pandemic, and DPSS had yet to receive a response.
The addendum further disclosed that adoption workers would not move forward with matching the twins with any of the identified adoptive parents until a decision regarding potential placement with the relative was resolved. As a result, DPSS requested a second 120-day continuance to complete the evaluations necessary to find an ideal placement for the twins and to allow for the completion of a preliminary adoption assessment to be prepared in advance of the section 366.26 hearing.
Finally, DPSS reported that the twins were "thriving," and that Jv.B.'s medical condition had improved such that she was no longer considered medically fragile.
3. The September 4, 2020 Addendum
On September 4, 2020, DPSS submitted a second addendum to its section 366.26 report. The addendum disclosed that the twins had been placed with caregivers willing to adopt on May 15, 2020. The caregivers were developing a reciprocal bond and attachment with the twins; had experience working with children with both medical and developmental delays; and had formal training in attachment and early childhood development. The report further noted that the twins were granted additional developmental services as a result of the caregivers' attention and advocacy on behalf of the twins. While the twins each initially struggled with this current placement, the relationship had improved such that Jz.B. had displayed an increased engagement and affection toward the caregivers, and Jv.B. had significantly reduced her self-harming behaviors.
DPSS also submitted the preliminary assessment by the adoption worker regarding the caregivers, which recommended that the twins be deemed adoptable and the caregivers be approved for adoption. The assessment indicated that the caregivers had a home sufficient to meet the twins' needs; had previously successfully adopted two children—including one with an extreme medical condition; had cleared the necessary criminal and social services background checks; and had a clear understanding of the responsibilities associated with adoption.
4. The September 14, 2020 Addendum
On September 14, 2020, DPSS filed a third addendum to its section 366.26 report. The addendum summarized the continued evaluation of the maternal cousin in Illinois for placement of the twins. Illinois social workers had approved the maternal cousin's home as a potential placement in response to DPSS's renewed ICPC referral. However, DPSS expressed concerns regarding conflicting information that the maternal cousin had provided in direct conversations with the DPSS social worker. As such, DPSS determined that the twins' current placement with the caregivers willing to adopt was more appropriate, particularly since the twins were bonded to the caregivers and the maternal cousin had no relationship with the children and had never had contact with them. C. The Section 366 .26 Hearing and Termination of Parental Rights
On October 1, 2020, the juvenile court held a selection and implementation hearing pursuant to section 366.26. The DPSS reports dated January 13, May 12, September 4 and 14, 2020, were admitted into evidence. While Mother and Father both objected to the reports and recommendations by DPSS, they did not offer any additional evidence at the time of the hearing. The trial court found by clear and convincing evidence that the twins were adoptable, and that no exception to the termination of parental rights applied. It ordered Mother's and Father's parental rights terminated and selected a permanent plan of adoption for the twins.
III. DISCUSSION
Both Mother and Father raise a single claim of error on appeal—that the juvenile court erred in terminating their parental rights because the evidence did not support a finding that the twins were adoptable. We disagree. A. General Legal Principles and Standard of Review
"Before terminating parental rights, the court must find by clear and convincing evidence that it is likely that the child will be adopted within a reasonable amount of time." (In re K.B. (2009) 173 Cal.App.4th 1275, 1290.)
"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.' " ' " (In re A.A. (2008) 167 Cal.App.4th 1292, 1313.) This inquiry "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." (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) "A child's young age, good physical and emotional health, intellectual growth and ability to develop interpersonal relationships are all attributes indicating adoptability. [Citation.] . . . ' "[Further], 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." ' " (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1562.)
Alternatively, "a minor who is not generally adoptable because of age, poor physical health, physical disability or emotional instability may nevertheless be adoptable because a prospective adoptive family has been identified as willing to adopt the child." (In re R.C. (2008) 169 Cal.App.4th 486, 494.) Such a minor is considered specifically adoptable because the " 'child is deemed adoptable only because a particular caretaker is willing to adopt [and] the analysis shifts from evaluating the characteristics of the child to whether there is any legal impediment to the prospective adoptive parent's adoption and whether he or she is able to meet the needs of the child.' " (Ibid.)
"The finding of adoptability is reviewed under the substantial evidence test." (In re K.B., supra, 173 Cal.App.4th at p. 1290.) "[W]e determine whether the record contains substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that [the child] was likely to be adopted within a reasonable time." (In re Erik P. (2002) 104 Cal.App.4th 395, 400; see In re Gregory A., supra, 126 Cal.App.4th at pp. 1561-1562.) "The power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination of whether there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. [Citation.] All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the decision, if possible. We may not reweigh or express an independent judgment on the evidence." (In re A.A., supra, 167 Cal.App.4th at p. 1313.) B. Substantial Evidence Supports the Juvenile Court's Finding of Adoptability
Here, there was ample evidence in the record to support the juvenile court's finding that the twins were adoptable.
The twins were only one year of age at the time of the section 366.26 hearing. Neither child had any identified mental health issues and both Jz.B. and Jv.B. were observed as being friendly, social, and engaging with adults. Additionally, Jz.B. had no current medical issues, and his physical growth was considered within normal range. While it was initially reported that Jv.B. was medically fragile and experienced developmental issues associated with eating and swallowing, an addendum to the report submitted five months later reported Jv.B. was now "thriving"; was no longer considered medically fragile; and her medical condition had "consistently improved" with therapy. Thus, substantial evidence in the record supports multiple factors weighing in favor of adoptability notwithstanding any lingering developmental issues.
Further, by the time of the section 366.26 hearing, the twins' current caretakers expressed that they were committed to providing the twins a permanent home, and a relative in Illinois with an approved home also continued to express interest in adopting the twins. Clearly, any finding of the twins' adoptability was not premised on a single, specific family's willingness to adopt where more than one approved family expressed such desire. Instead, the fact that more than one approved family indicated a willingness to adopt the twins was clear and convincing evidence that any lingering developmental issues were not so great as to preclude a finding of adoptability.
Both Mother and Father highlight the fact that DPSS requested two, separate 120-day continuances of the section 366.26 hearing and argue this shows DPSS had trouble locating any families willing to adopt. However, the record indicates that both continuances were due to delays in evaluating a potential family placement out of state, and DPSS represented on both occasions that adoption workers had identified multiple potential prospective adoptive placements but were not inclined to move forward with those placements until potential placement with family members had been fully evaluated. Nothing in the record suggests that either continuance was due to difficulty locating caregivers willing to adopt the twins.
While the record also indicates that two prior placements requested removal of the twins, the reasons for these requests were not disclosed. Thus, it is speculative to assume that such requests were made as a result of any undesirable characteristics of the twins, as opposed to any number of other reasons a caretaker might have for making such a request. Further, these two placements were never identified as prospective adoptive placements, as DPSS's reports made clear that adoption workers did not move forward with any prospective adoptive placements while awaiting the evaluation of family members. Thus, we presume these specific placements were always intended to be temporary, and a request for removal does not suggest a "failed" attempt to pair the twins with a permanent home.
Both Mother and Father also argue the twins could not be considered generally adoptable because they required therapy and services to address developmental delays. However, there is no authority for the proposition that a finding of adoptability is precluded simply because a child has special needs requiring services. Indeed, this court has previously rejected the argument that a child with special needs can only be deemed adoptable if an " 'approved' " caregiver willing to adopt exists. (In re K.B., supra, 173 Cal.App.4th at p. 1293 [affirming finding of general adoptability for sibling set despite developmental delays, speech, and educational problems resulting from fetal alcohol syndrome].) Other appellate courts have reached the same conclusion. (In re Helen W. (2007) 150 Cal.App.4th 71, 79-80 [child may be found adoptable despite uncertainty surrounding future medical needs]; In re R.C., supra, 169 Cal.App.4th at p. 492 [child may be found generally adoptable despite a history of medical issues, evidence of developmental delays, and a possibility the child may experience future problems]; In re A.A., supra, 167 Cal.App.4th at p. 1312 [upholding finding of adoptability despite evidence of children's ongoing behavioral and emotional problems].) A child's adoptability should not be determined on the basis of disability alone. Such a rule would prevent children with the greatest needs from finding stable, permanent, and loving homes.
As more recently explained by our colleagues in the Second Appellate District, "Very few children in the dependency system are without problems. To deny [a child] the chance to permanently become a member of the family that loves him and that he loves, simply because he has special needs, would derail the entire concept of permanent planning." (In re J.W. (2018) 26 Cal.App.5th 263, 268-269.) Thus, we disagree with the contention that the twins could not be considered generally adoptable because they required services to address developmental delays. This was only one factor for the juvenile court to consider in determining whether the twins would likely be adopted within a reasonable time. Where the record contains evidence of other, favorable attributes suggesting the twins are likely to be adopted, substantial evidence supports the juvenile court's finding of adoptability and, it is not our role to reweigh the evidence on appeal. C. Substantial Evidence Also Supports a Finding the Twins Were Specifically Adoptable
Finally, even if we were to assume that the existence of some developmental delays precluded the twins from being considered generally adoptable, substantial evidence in the record also supports the juvenile court's finding of adoptability based upon the willingness of the twins' current caretakers to adopt them.
We disagree with Father's argument that "[t]here was no information concerning whether the [caregivers willing to adopt] could weather the storm of these highly special children." The September 4, 2020 addendum to the section 366.26 report included an eight-page preliminary adoption assessment conducted by an independent adoption agency. This assessment contained a detailed account of the caregivers' social, educational, and economic background; confirmed that the caregivers' had cleared both criminal and child welfare background checks; and further detailed how the twins had improved following placement in the caregivers' home. Further, the assessment specifically set forth that the caregivers had already previously successfully adopted two children—including one with highly specialized medical needs. Additionally, the prospective adoptive mother is described as "passionate about advocating for the needs of hospitalized children who are in foster care and has earned a degree in child development." The prospective adoptive father is a registered nurse and has earned a master's degree in nursing. Not only was this strong evidence to suggest there would be no legal impediment to adoption by the caregivers, it also constituted evidence to support a conclusion that the caregivers were capable of providing for any specialized needs the twins may have had.
According to the assessment, the prospective adoptive parents adopted a son in 2003 who was "extremely medically fragile and had a life expectancy of two years." It was reported that this son thrived in the adoptive parents' care until he passed away in 2015 from his medical condition—years beyond his initial life expectancy at the time he was adopted. --------
Nor do we agree with Mother's argument that an initial report indicating the twins had difficulty adjusting to placement with the caregivers willing to adopt rendered the juvenile court's finding "tenuous" or "dangerously premature." Despite reports that the twins experienced initial difficulty adjusting to their new placement, the adoption assessment noted that after four months with the caregivers, both Jv.B. and Jz.B. exhibited progress in adjusting to their new home, a decrease in negative behaviors, and "signs of developing a secure attachment to the prospective adoptive family." Moreover, the assessment noted that the caregivers consistently exhibited attention to the twins' needs; acquired a team of therapists and doctors to address the twins' medical and developmental needs; and actively participated in the twins' therapies. This was substantial evidence that the caregivers were committed to caring for the twins despite any developmental delays or special needs, and that the twins were adjusting to their new placement.
Termination of parental rights does not require a finding that a dependent child already be placed into a perfectly matched prospective adoptive home or that the child have lived for years and become fully adjusted and integrated into that home. Instead, the juvenile court need only find that the dependent child is likely to be adopted within a reasonable time. "[I]t 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 . . . ." (In re K.B., supra, 173 Cal.App.4th at p. 1293.)
Here, even assuming the existence of developmental delays rendered the twins not generally adoptable, the evidence of the caregivers' ability to care for the twins over the course of four months; the noticeable improvement of the twins in adjusting to the caregivers' home over this time; and the caregivers' continued commitment to pursuing the adoption of the twins constitute substantial evidence upon which the juvenile court could conclude the twins were specifically adoptable. Thus, substantial evidence supports the juvenile court's finding that the twins were adoptable, and we decline to reverse its order terminating parental rights on this ground.
IV. DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: McKINSTER
Acting P. J. MILLER
J.