Opinion
A157511
02-06-2020
In re K.L.-B., a Person Coming Under the Juvenile Court Law. SAN MATEO COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. DOMINIC B., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. 17JD1079)
In this dependency appeal, Dominic B. challenges the juvenile court order terminating his parental rights (Welf. & Inst. Code, § 366.26) with respect to his son, K.L.-B. Father's sole contention is that the juvenile court improperly concluded that K.L.-B. was likely to be adopted if parental rights were terminated, a finding which must precede the severing of parental ties. (See § 366.26, subd. (c)(1).) We are familiar with this case, having issued an opinion last year rejecting several claims of error with respect to the juvenile court's decision to remove K.L.-B. and his half sister, K.C., from the family home and set a permanency planning hearing for the two minors. (See M.L. v. Superior Court (2019) 37 Cal.App.5th 390.) We now conclude that substantial evidence supports the juvenile court's adoptability finding with respect to K.L.-B. and affirm.
All statutory references are the Welfare and Institutions Code unless otherwise specified.
I. BACKGROUND
K.L.-B. (born in 2008) and K.C. (born in 2011) came to the attention of the Contra Costa County juvenile court in May 2014 after San Francisco police encountered their mother, M.L., who had been wandering the streets aimlessly with the two minors for over 12 hours. Both children were disheveled and complained they were hungry. An investigation revealed that both M.L. and K.C.'s father, M.C., had a history of substance abuse and domestic violence. M.L. also reported mental health issues. Dominic B.'s whereabouts were unknown at that time and he had not been a significant presence in K.L.-B.'s life for a number of years. At the February 2015 dispositional hearing, K.L.-B. and K.C. were declared juvenile court dependents, removed from parental custody, and placed in the home of the maternal grandparents.
M.L. cooperated with services and the minors were returned to her care in September 2015 under a family maintenance plan. Family maintenance services continued for over three years. By March 2017, the social worker was receiving reports that M.C. was physically and emotionally abusing K.L.-B. and K.C. Escalating issues with domestic violence, neglect, substance abuse, and mental health resurfaced despite the provision of extensive services to the family. When the San Mateo County juvenile court removed K.L.-B. and K.C. for a second time in December 2018, it described their situation as "volatile" and "dire."
K.L.-B.'s personal circumstances deteriorated during this period of instability. He experienced incidents of enuresis (bed wetting) and encopresis (soiling), likely the result of psychological stress. K.L.-B. was psychiatrically hospitalized in September 2017 after he disclosed plans at school to cut himself with a kitchen knife, and was discharged with prescribed medications and diagnoses of depression, attention deficit hyperactivity disorder (ADHD), nocturnal enuresis, and posttraumatic stress disorder. K.L.-B. also engaged in aggressive and inappropriate behaviors at school on days when mother failed to give him his ADHD medication. Although M.C. routinely abused K.L.-B.—hitting him, putting his hands around his neck while calling him "retarded," forcing him to sit on the toilet for extended periods at night due to his bedwetting, and verbally berating him—and M.L. failed to protect K.L.-B. or meet his needs, both parents blamed the young minor for the family's dysfunction.
Once removed, K.L.-B. frequently told the social worker that he did not want to go home or leave his foster home. K.L.-B. and K.C. sometimes refused visits with M.L. and M.C. The juvenile court granted a request from M.L. and M.C. for a bonding study to examine their bond with both minors. After refusing to see Dominic B. for an extended period, K.L.-B. agreed to monthly visits beginning in January 2019. K.L.-B. began to express a desire to live with Dominic B. In April 2019, the juvenile court denied motions for additional reunification services made by M.L., M.C., and Dominic B.
K.L.-B. disclosed to his foster parents that he had been sexually abused after they discovered him sexually acting out with a family dog in February 2019. He apologized and expressed remorse. A behavioral therapist was assigned to help K.L.-B. manage his behaviors. Both K.L.-B. and K.C. also reported that they had been physically and emotionally abused by the maternal grandparents while in their care. Requests by the maternal grandparents for visitation and a stay of the permanency planning hearing were denied by the court in May 2019.
In March 2019, K.L.-B. was moved from his foster home to the home of his paternal step-grandparents, where he thrived. While nurturing, the step-grandparents provided a strict routine and firm limits to which he responded positively. The caregivers did not shame K.L.-B. regarding his continuing encopresis but instead created a system for dealing with accidents that invited his participation. The adoptions social worker assessed K.L.-B. and found him to be adoptable given his "resilience, good health, and young age." She discussed permanent planning with the paternal step-grandparents but was "confident" another adoptive family could be identified if his current placement was unwilling to adopt. Adoption was recommended as K.L.-B.'s permanent plan.
At the permanency planning hearing in May 2019, Dr. Packer testified regarding the results of her bonding study as a stipulated expert in parent-child bonding. She opined that both K.L.-B. and K.C. had "insecure parental attachments" to M.L. and M.C., which, while "resistant" and "conflicted," were "not going away." Dr. Packer further testified that, given their ages and their past traumatic experiences, the children were not open to forming new attachments. Dr. Packer acknowledged that she had not met with K.L.-B. in his placement with the paternal step-grandparents and could not opine about his attachment to them or the quality of their relationship. Finally, she stated that his desire to live with Dominic B. was based on "an idealized longing for perfect love with a wonderful dad" rather than actual experience.
The social worker testified that K.L.-B. was participating in weekly therapy, behavioral therapy, and monthly meetings with a psychiatrist. He was not currently taking any psychotropic medications, although he had done so in the past. The social worker also testified as to numerous reasons why she did not support his placement with Dominic B.
The adoptions social worker testified that she had been working in the field for 23 years and had seen "[h]undreds" of cases through to adoption. She found K.L.-B. to be adoptable. At age 10, K.L.-B. was still young and there are "families that would be interested in his age." She noted that he was in "great health" and he was very active and liked to play sports. She described him as "very smart," "very friendly," "very outgoing," and "a great kid." Although he had emotional needs—as do most children in foster care—those needs were being addressed and he was making progress. The adoptions worker had seen K.L.-B. with the paternal step-grandparents and—based on that interaction as well as her own experience with the minor—she believed he was capable of developing interpersonal relationships. She opined that multiple placements could be available to a child with all of his characteristics. Moreover, the adoptions worker had spoken with the paternal step-grandparents that morning, and they were "leaning towards" adoption. They wanted to make sure they could meet all of his needs before making a final decision. K.L.-B. had told her that he liked living with the step-grandparents and wanted to remain there.
At the conclusion of the permanency planning hearing, all of the parties except for Dominic B. argued in favor of adoption. The juvenile court found K.L.-B. adoptable by clear and convincing evidence and terminated the parental rights of M.L. and Dominic B. The court noted in particular that it had heard plenty of evidence that K.L.-B. and K.C. were resilient children despite everything they had been through. And, while the children did have a connection to M.L. and M.C., the court found that they were also able to develop connections with other people. The court described the children as young, healthy, and "willing to interact." Although it recognized that K.L.-B. "certainly" had some issues, he was getting help in dealing with them. The court therefore selected adoption as K.L.-B.'s permanent plan. Dominic B. appealed.
II. DISCUSSION
At a permanency planning hearing, "[i]f 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." (§ 366.26, subd. (c)(1).) "The issue of adoptability requires the court to focus on the child, and whether the child's age, physical condition, and emotional state make it difficult to find a person willing to adopt. [Citations.] It is not necessary that the child already be placed in a preadoptive home, or that a proposed adoptive parent be waiting. [Citations.] However, there must be convincing evidence of the likelihood that adoption will take place within a reasonable time." (In re Brian P. (2002) 99 Cal.App.4th 616, 624 (Brian P.).) This " 'likely to be adopted' standard is a low threshold." (In re J.W. (2018) 26 Cal.App.5th 263, 267 (J.W.).) Moreover, if a child is adoptable, "there is a strong preference for adoption over alternative permanency plans." (In re Michael G. (2012) 203 Cal.App.4th 580, 588 (Michael G.).)
Our task on appeal is to "determine whether the record contains substantial evidence from which the juvenile court could find clear and convincing evidence the child was likely to be adopted within a reasonable time." (Michael G., supra, 203 Cal.App.4th at p. 589.) "We give the court's finding of adoptability the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of affirming." (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1562.) A reviewing court does not pass on the credibility of witnesses, attempt to resolve evidentiary conflicts, or reweigh the evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53 (Casey D.).) Rather, we review an adoptability 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 (K.B.).)
Dominic B. argues there was insufficient evidence in this case to support the juvenile court's finding that K.L.-B. was adoptable given the minor's emotional and behavioral problems, his advanced age, and the fact that no prospective adoptive family had actually committed to adopting him. He also contends that the adoption worker's opinion is insufficient on its own to establish substantial evidence of adoptability and highlights Dr. Packer's opinion that K.L.-B. was unlikely to form attachments to new caregivers. His arguments misapprehend our deferential standard of review. While there are facts in the record upon which a contrary conclusion could be based, substantial evidence supports the juvenile court's adoptability finding.
Adoptability can either be general or specific. (In re B.D. (2019) 35 Cal.App.5th 803, 817.) Where a minor's appealing characteristics make the child likely to be adopted by several different families, he or she "can be found to be generally adoptable even if no prospective adoptive family is ' "waiting in the wings," ' ready to adopt." (Ibid.) If a prospective adoptive family does exist, that is a factor weighing in favor of a general adoptability finding. (Ibid.) A minor is specifically adoptable, on the other hand, when he or she is likely to be adopted only because a committed prospective adoptive family had been identified. (Ibid.) Here we are concerned with K.L.-B.'s general adoptability.
Substantial evidence in the record supports the juvenile court's determination that the minor is adoptable. Drawing from her considerable experience, the adoptions social worker testified that K.L.-B. was adoptable because he was young, in "great health," enjoyed playing sports, was active and engaging, and was "very smart," "very friendly," "very outgoing," and "a great kid." From her observations of K.L.-B. with his step-grandparents and her own interactions with the minor, she concluded he was capable of developing interpersonal relationships with others. She testified that multiple placements could be available for a child with all of his characteristics. The step-grandparents were "leaning towards" adoption after a placement of only two months and, as discussed below, described him in very positive terms. Like most children in foster care, K.L.-B. had emotional needs but these needs were being addressed in therapy and he was making progress. The adoption worker's well-supported opinion was compelling evidence that K.L.-B. was likely to be adopted in a reasonable time if parental rights were terminated.
Additional evidence of K.L.-B.'s general adoptability can be found throughout the extensive record in this dependency action, which is replete with statements attesting to his numerous positive characteristics and strong relationships despite his various challenges. At the beginning of the case in 2014, K.L.-B. was described as a "friendly, outgoing, and sociable young boy" who "loves learning," and was "on target developmentally." According to the social worker, he "present[ed] as resilient." In 2015, he was characterized as "very energetic, smart and articulate." A different social worker described K.L.-B. in 2016 as "talkative, enthusiastic and inquisitive about his surroundings and everyday events." He "really enjoy[ed] his school, teacher, and friends." When he was forced to change schools, however, K.L.-B. declared that his new school was " 'awesome' " and that he had made a lot of new friends. In 2017, although he was exhibiting social and behavioral challenges at school, staff described the minor as "one of the brightest students in his class, and a wonderful child."
K.L.-B.'s court-appointed special advocate (CASA) had "a great relationship" with him. She described him as a "confident, friendly and social boy" who had "quite the sense of humor" and was always trying to get people to laugh. According to his CASA, he was "always smiley, happy and full of energy" and seemed "outwardly well-adjusted and resilient." He was a "smart kid able to comprehend and process information quickly," loved to read, and had a wide vocabulary and a great memory. His curiosity about a lot of different subjects was one of her "favorite things" about him. K.L.-B.'s social worker echoed many of these observations, describing him as a "bright, intelligent, creative, funny, considerate and caring young boy" who enjoyed playing sports, his trumpet, and video games. Despite his behavioral struggles at school, the social worker reported that he had many male friends at school, a "strong relationship" with his principal, and many teachers who reported to "like [K.L.-B.] and be fond of him." And, although well aware of his challenges, the paternal step-grandparents described him as a "curious, athletic, outgoing, considerate, and helpful" child who enjoyed "playing the piano, trumpet, reading, and playing any sport that involves a ball, such as basketball and soccer."
Dominic B. contends that because of the minor's behavioral challenges, emotional instability, and history with mental illness, the evidence was insufficient to support an adoptability finding. We reject the suggestion that children suffering from mental health and behavioral issues stemming from their history of abuse cannot be deemed generally adoptable. (See J.W., supra, 26 Cal.App.5th at p. 268; K.B., supra, 173 Cal.App.4th at p. 1293 [disagreeing with notion "that a special needs child can be deemed adoptable only if an 'approved' prospective adoptive parent exists"]; In re I.I. (2008) 168 Cal.App.4th 857, 870-871 [although children had behavioral problems, their "indisputably . . . positive characteristics" supported adoptability finding]; In re Helen W. (2007) 150 Cal.App.4th 71, 76, 79-80 [children with significant medical and developmental challenges could nevertheless be deemed generally adoptable based on evidence of their appealing characteristics].) As the court observed in J.W., children in the foster care system are rarely without challenges. (J.W., at p. 268.) While K.L.-B. has experienced many difficulties in his young life, substantial evidence supports the juvenile court's finding that he is resilient and has made progress through therapy and a loving and supportive environment. There is substantial evidence as well of his many appealing attributes, including his intelligence, good health, creative mind, outgoing nature, and ability to form relationships with adults and children alike, all of which reinforce a finding of general adoptability.
As for Dr. Packer's opinion that he had essentially used up all of his resilience and would therefore be unable to attach to new caregivers, the adoption social worker disagreed and concluded that K.L.-B. was capable of forming new relationships. Importantly, the adoptions worker had seen the boy with his paternal step-grandparents while Dr. Packer had not. It is the duty of the juvenile court, not our court, to resolve this evidentiary conflict. And the juvenile court clearly stated it found K.L.-B. resilient and able to form interpersonal attachments. We decline Dominic B.'s suggestion that we reweigh the evidence and substitute our judgment for that of the juvenile court on this point. (See Casey D., supra, 70 Cal.App.4th at p. 53; In re Cheryl E. (1984) 161 Cal.App.3d 587, 598.)
Dominic B. asks us to discount the testimony of the adoption social worker and contends that a finding of adoptability cannot be based solely upon the opinion of a social worker. The authorities cited do not support his contention. Those courts found that unsupported statements of adoptability by a social worker were deemed insufficient, without more, to support an adoptability determination. (See Brian P., supra, 99 Cal.App.4th at pp. 624-625 [bare bones testimony by social worker that minor was adoptable insufficient evidence of adoptability where no adoption assessment was provided and facts from the record were cursory and equivocal]; In re Kristin W. (1990) 222 Cal.App.3d 234, 253 [adoptability finding could not be implied where only evidence of adoptability was statement by social worker in her report that " '[i]t is felt that these minors are adoptable' "].) Here, in contrast, the adoption social worker's testimony was detailed, grounded in her own experiences with the minor, and substantiated by abundant evidence in the record. --------
Finally, we reject Dominic B.'s argument that because no prospective adoptive family had committed to adopting K.L.-B., evidence of adoptability was lacking. As stated above, the existence of a prospective adoptive family is not required. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) While "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" (id. at p. 1650), the adoptability analysis focuses on a minor's likelihood of being adopted within a reasonable time (In re Jennilee T. (1992) 3 Cal.App.4th 212, 223). We need not determine whether the paternal step-grandparents expressed a sufficiently clear interest in adopting the minor because, as we have concluded, substantial evidence supports the juvenile court's finding of adoptability based on K.L.-B.'s positive attributes, resilience, and ability to develop attachments and respond to appropriate care and support.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Sanchez, J. WE CONCUR: /s/_________
Humes, P. J. /s/_________
Banke, J.